     In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                           No. 09-221V
                                    Filed: November 18, 2015

*************************                         TO BE PUBLISHED
D.B.,                                     *
                                          *       Special Master Hamilton-Fieldman
                     Petitioner,          *
v.                                        *       Petitioner’s Motion to Vacate Judgment;
                                          *       RCFC 60(b)(6).
SECRETARY OF HEALTH                       *
AND HUMAN SERVICES,                       *
                                          *
                     Respondent.          *
*************************
Diane C. Cooper, Bruce G. Clark & Associates, Port Washington, NY, for Petitioner.
Alexis B. Babcock, United States Department of Justice, Washington, DC, for Respondent.


       RULING DENYING PETITIONER’S MOTION TO VACATE JUDGMENT 1


       On January 9, 2014, the undersigned granted Petitioner’s motion to dismiss her Vaccine
claim and filed a decision dismissing her claims for lack of sufficient proof to receive
compensation under the National Vaccine Injury Compensation Program (“the Program”), 42
U.S.C. §300aa-10, et seq. 2 Motion to Dismiss, ECF No. 81. The subsequent judgment was filed
on January 14, 2014. Judgment, ECF No. 84. Petitioner filed a Motion to vacate Judgment on
January 13, 2015. Motion to Vacate, ECF No. 94.
        The Motion to Vacate Judgment was filed pursuant to Rule 60(b)(6) of the Rules of the
United States Court of Federal Claims (“RCFC”). Motion to Vacate at 1, ECF No. 94. For the
reasons set forth below, the undersigned finds that Petitioner has set forth no valid basis
justifying relief from judgment, and Petitioner’s Motion to Vacate Judgment is hereby DENIED.

       1
         This Ruling was originally filed on September 4, 2015. On September 17, 2015,
Petitioner moved to have her name redacted in the public version of the Ruling. On November
12, 2015, the undersigned granted, in part, Petitioner’s motion. In the reissued Ruling,
Petitioner’s name, as well as her family name, is replaced with her initials; the remainder of the
Ruling is unchanged.
       2
         The National Vaccine Injury Compensation Program comprises 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 et seq. (2012). Hereinafter, individual section references will be to 42
U.S.C. § 300aa of the Vaccine Act (“the Act”).

                                                 1
I. PROCEDURAL HISTORY
        On April 14, 2009, Meena S. and Sat Dev B. filed a petition on behalf of their minor
daughter, D.B. (“Petitioner”) 3, for compensation under the Program alleging that their daughter
suffered from acute myopathy 4 as a result of receiving the Tetanus booster and Menactra 5
vaccination on April 14, 2006. Petition at 1, April 14, 2009. 6 The case was initially brought pro
se and assigned to then Chief Special Master Golkiewicz. Petitioner obtained an attorney,
Thomas P. Gallagher, who entered his appearance on September 16, 2009. Motion, September
16, 2009. Petitioner filed medical records over the next several months, and she filed a statement
of completion on March 18, 2010. 7 Statement of Completion, ECF No. 25.
        On May 17, 2010, Respondent filed a Vaccine Rule 4(c) report, asserting that Petitioner’s
injuries predated the vaccinations she received and thus that Petitioner is not entitled to
compensation under the Act. Respondent’s Report at 8-12, ECF No. 27. On June 8, 2010, the
special master ordered Petitioner to file additional medical records and an expert report. Order,
ECF No. 28.
        On November 30, 2011, the special master issued an Order to Show Cause after
Petitioner’s repeated failure to file an expert report supporting her theory of causation; the case
appeared stalled. Order to Show Cause at 2, ECF No. 57. Special Master Golkiewicz also noted
that Mr. Gallagher’s multiple attempts to contact the Petitioner had been unsuccessful. Id.
Petitioner was informed that “[f]ailure to respond to a court order because petitioners have failed
to stay in contact with their attorney is deemed noncompliance with a court order”, and that such
noncompliance would result in “dismissal of petitioner[’s] claim.” Id. Petitioner filed a response
to the Order to Show Cause on January 13, 2012 stating that she had contacted several
physicians and pathologists to review her medical records; both a doctor and a pathologist agreed
to review the case. Response to Order to Show Cause at 1, ECF No. 58. Petitioner ultimately
       3
         Petitioner was a minor at the time of the filing, and her parents filed the action on her
behalf. Once she reached the age of majority, the caption was amended on April 3, 2013 to name
D.B. as the only petitioner. Order, ECF No. 77.
       4
        Myopathy is defined as “any disease of a muscle.” Dorland’s: Dorland’s Illustrated
Medical Dictionary, 1224 (32nd ed. 2012).
       5
         The Petition alleged that Petitioner received a Tetanus booster and a Menactra
vaccination. Menactra is a brand name for a meningococcal vaccination. See
http://www.menactra.com/what-is-menactra-vaccine.html.
       6
         The Petition reflects that D.B. received a Tetanus booster and Menactra vaccination on
April 14, 2006; however, Petitioner’s records from Dr. Gargi Gandhi reflect an administration of
“Adacel and Menactra” on April 14, 2006. See Pet’r’s Ex. 1 at 15-16. Adacel is an active booster
immunization for the prevention of tetanus, diphtheria, and pertussis. See
http://www.adacelvaccine.com/.
       7
        Petitioner continued to file additional medical records after filing of the statement of
completion. The last medical records was filed on October 3, 2012. Pet’r’s Ex. 24, ECF No. 69.


                                                2
filed an expert report by Dr. John Shane on March 26, 2012. Expert Report, ECF No. 60, Pet’r’s
Ex. 18.
       The case was reassigned to then Chief Special Master Campbell-Smith on May 9, 2012,
and Respondent filed her expert report by Dr. Barry Russman on May 29, 2012. Order, ECF No.
62; Expert Report, ECF No. 63, Respondent’s (“Resp’t”) Ex A.
        During a July 11, 2012 status conference, the special master discussed the medical
records and recently filed expert reports. This was an initial evaluation of the merits of
Petitioner’s case. Order at 2, ECF No. 64. The special master noted that “the medical records
indicate that Diskha’s symptoms of muscle weakness and fatigue predated her receipt of the
implicated vaccines,” id. at 1, but that “Dr. Shane, nonetheless, discounts the weakness of which
[D.B.] complained prior to the administered vaccines, asserting that [D.B.’s] symptoms appeared
abruptly two days after vaccination. Id. The special master observed “that on the record as now
constituted, Dr. Russman [Respondent’s expert] has proposed a theory that is more consistent
with the facts of this case,” and directed Petitioners to file a supplemental report further
discussing the timing “required for the myopathic process to present clinically, irrespective of the
inciting agent.” Id. at 2.
       Petitioner filed a supplemental expert report by Dr. Shane on September 12, 2012. Expert
Report, Pet’r’s Ex. 20, ECF No. 66. Respondent filed a supplemental expert report by Dr.
Russman on December 19, 2012. Expert Report, ECF No. 72, Resp’t Ex. C. An entitlement
hearing was set for May 24, 2013. Scheduling Order, ECF No. 73.
         The case was reassigned to the undersigned on March 4, 2013. Order, ECF No. 74.
During a status conference on April 15, 2013, Petitioner’s counsel indicated that upon a review
of the medical records, he did not believe that there was “sufficient evidence to proceed with
litigating this case”; he did not believe that Petitioner “[would] be able to meet the
preponderan[ce of] evidence” standard required to succeed in the Program. Order, ECF No. 78.
No mention was made of any problems with Dr. Shane, indictment or otherwise. Order at 1, ECF
No. 78. The entitlement hearing was cancelled and the undersigned ordered Petitioner to file, by
late May, either a motion for ruling on the record or a motion requesting dismissal. Order at 1-2,
ECF No. 78.
        Petitioner filed a Motion for Judgment on the Administrative Record on May 20, 2013;
she filed another Motion on December 12, 2013. 8 Motions, ECF Nos. 79 and 80. Dr. Shane’s
expert reports were never withdrawn. In the first Motion for Judgment on the Administrative
Record, Mr. Gallagher stated that “his efforts to find an expert to support [Petitioner’s] position
failed.” Motion at 1, ECF No. 79. On January 9, 2014, prior to issuance of a decision on
Petitioner’s motion for Judgment on the Administrative Record, Petitioner filed a Motion to
Dismiss, stating that she was unable “to prove that she is entitled to compensation in the Vaccine
       6
         In Petitioner’s Motion filed on December 12, 2013, Petitioner mentioned that the
second Motion was filed because the undersigned had not filed a decision since the filing of the
first Motion for a Judgment on the Record. Motion, ECF 80. The Petitioner also stated that she
was only seeking a judgment in this case so that she could file a civil action against the
manufacturer and/or administrator of the vaccine. Id. For that purpose she did not need the
substantive evaluation of the merits of her case that the undersigned had been preparing to issue.


                                                 3
Program” based on the facts and science supporting her case. Motion to Dismiss at 1, ECF No.
81. Thereafter, the undersigned issued a decision dismissing the case for insufficient proof on
January 9, 2014. Decision, ECF No. 82. Petitioner filed an election to file civil action, wherein
she elected to maintain her option of filing a civil action “in lieu of accepting the Judgment
entered on January 14, 2014.” Election to File Civil Action at 1, ECF No. 85. Petitioner was
awarded attorneys’ fees and costs in the amount of $35,286.07 on January 27, 2014. Decision,
ECF No. 87.
        Approximately a year after the judgment dismissing Petitioner’s claims, on January 13,
2015, attorney Diane Cooper was substituted for Mr. Gallagher. Motion, ECF No. 93; Notice,
January 13, 2015. On the same day, Petitioner filed a Motion to Vacate the January 14, 2014
judgment on the basis of RCFC Rule 60(b)(6), stating that “[her] claim was not decided on the
merits through no fault of her own or her prior attorney’s but as a direct result of a federal
indictment against…her then expert, Dr. John Shane.” Motion, ECF No. 94. This was the first
mention of Dr. Shane’s indictment in the instant case. Petitioner also filed two additional expert
reports, supporting documentation, and supporting medical literature with the Motion. Pet’r’s
Exs. 24-29.
        Respondent filed a response objecting to Petitioner’s request on January 30, 2015.
Response, ECF No. 96. Respondent argues that the indictment of Dr. Shane four years before
Petitioner filed Dr. Shane’s expert report is not sufficient grounds for relief because Petitioner
did not raise the issue during the pendency of the original action and because Dr. Shane was
“exonerated” a year prior to the dismissal of the case. Response at 5-6, ECF No. 96. Respondent
also asserts that Petitioner chose to dismiss her case in order to potentially pursue a civil action
and that this voluntary action on Petitioner’s part is also not a valid ground for relief from
judgment. Id. at 6, 7. Finally, Respondent argues that the newly filed expert reports are not
grounds for re-opening the case because they do not constitute an “extraordinary circumstance”
as required under RCFC Rule 60(b)(6). Id. at 7, 8.
        Petitioner filed a reply to Respondent’s response to the Motion to Vacate on February 6,
2015. Reply, ECF No. 97. Characterizing the dismissal as involuntary, Petitioner asserts that the
case was dismissed due to Dr. Shane’s indictment, and not because of “change in litigation
strategy” as characterized by Respondent. Id. at 4. This matter is now ripe for ruling.
II. PETITIONER’S MEDICAL HISTORY
       Petitioner was thirteen years old when she received the Tetanus booster and Menactra
vaccination from Gargi Gandhi, MD (“Dr. Gandhi”) during a routine physical examination on
April 14, 2006. 9 Pet’r’s Ex. 1 at 15-17. During the visit, Petitioner complained of fatigue and
occasional weakness. Id. Dr. Gandhi attributed these symptoms partially to stress caused by her
“recent family situation.” Id. However, Dr. Gandhi ordered additional tests to rule out other




       9
         Petitioner’s medical history was largely unremarkable prior to her April 14, 2006 visit
to Dr. Gandhi when she received the Adacel and Menactra vaccinations. Petitioner had a history
of asthma, but was otherwise in good health. See, e.g., Pet’r’s Ex. 11 at 19, 23.
                                                 4
possible causes of Petitioner’s symptoms, the results of which were abnormal; Petitioner had
“elevated liver enzymes”. 10 Pet’r’s Ex. 1 at 12.
        At the follow-up visit on April 26, 2006, Petitioner reported having fever of 103 degrees
for three to four days. Pet’r’s Ex. 11 at 4. She reported feeling weak at the visit even though the
fever had resolved. Id. Petitioner also reporting having “trouble lifting [her] arms and getting out
of bed.” Id. Prior to the onset of the weakness, Petitioner was an “avid athlete,” but reported not
being able to “do any push-ups or sit-ups and [being] unable to perform in gym class” at the time
of the visit. Id. In a musculoskeletal exam, Petitioner was “unable to lift arms passively to 90
deg[rees], unable to sit up from supine position, [and] unable to stoop and recover.” Id. at 5. The
following was noted by Dr. Gandhi: “low muscle bulk in arms and legs but symmetric; walk
unassisted, slow to get up from seated position but able to do [it] alone.” Id.
        Petitioner’s symptoms continued to worsen; as of April 14, 2009, Petitioner was
wheelchair bound and “barely able to move her hand and unable to lift her legs or arms.” Pet’r’s
Ex. 3 at 29. Cognitively, she is appears normal. Id. at 28.
        Petitioner went on to see a number of physicians and specialists, but no definite diagnosis
had been made as of the date of dismissal; she seems to have a myopathy. Pet’r’s Ex. 24 at 1;
Pet’r’s Ex. 12 at 1, 11; Pet’r’s Ex. 4 at 11-12. Petitioner’s “[f]amily history is negative for any
relatives with neuromuscular disorders or muscular dystrophy”; and the results of all genetic
tests were normal. Pet’r’s Ex. 4 at 29. Some of Petitioner’s physicians made a vague temporal
connection between her symptoms and her vaccinations, but no causal connection was ever
made. See generally Pet’r’s Ex. 7 at 4 (Dr. Pascual); Pet’r’s Ex. 9 at 257 (Dr. Sipro); Pet’r’s Ex.
9 at 192 (Dr. Moon).
III. THE APPLICABLE LEGAL STANDARDS
        The Vaccine Rules of the United States Court of Federal Claims, which are found at
Appendix B to the RCFC, govern all Program proceedings. Vaccine Rule 1(a). If a matter is not
specifically addressed by the Vaccine Rules, the special master may apply the RCFC, so long as
those rules are not inconsistent with the Vaccine Rules and the purpose of the Vaccine Act.
Vaccine Rule 1(b)-(c).
       Under Vaccine Rule 36, a party may seek relief from judgment pursuant to Rule 60 of the
RCFC (“RCFC 60”). RCFC 60 is identical to Rule 60 of the Federal Rules of Civil Procedure
(“Rule 60”). Blake v. Sec’y of Health & Human Servs., No. 03-31V, 2014 WL 7331948, at *4
(Fed. Cl. Spec. Mstr. Sept. 11, 2014). Thus, cases involving Rule 60 are useful in interpreting the
meaning and intent of RCFC 60. Id.
       A motion for relief under RCFC 60(b) “seeks to set aside a final decision and it is
incumbent upon the motion-filer to demonstrate that he or she is entitled to relief”; it “is not a
pleading, like a complaint, in which the factual allegation[s] are presumed true.” Kennedy v.
Sec’y of Health & Human Servs., 99 Fed. Cl. 535, 550 (2011).

       10
            The only result specifically discussed in the doctor’s notes was abnormal liver
enzymes.


                                                  5
        In determining whether a judgment should be set aside, “the need for finality of
judgments” must be balanced against “the importance of ensuring that litigants have a full and
fair opportunity to litigate.” Kennedy, 99 Fed. Cl. at 540-41 (citing United Student Aid Funds,
Inc. v. Espinosa, 559 U.S. 260, 276 (2010)); see also Bridgham v. Sec’y of Health & Human
Servs., 33 Fed. Cl. 101, 104 (1995). In Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th Cir.
1981), the court listed eight factors that should be considered when ruling on a Rule 60(b)
motion:
       (1) [t]hat final judgments should not be lightly disturbed; (2) that the Rule 60(b)
       motion is not to be used as a substitute for appeal; (3) that the rule should be
       liberally construed in order to achieve substantial justice; (4) whether the motion
       was made within a reasonable time; (5) whether if the judgment was a default or a
       dismissal in which there was no consideration of the merits the interest in
       deciding cases on the merits outweighs, in the particular case, the interest in the
       finality of judgments, and there is merit in the movant’s claim or defense; (6)
       whether if the judgment was rendered after a trial on the merits the movant had a
       fair opportunity to present his claim or defense; (7) whether there are intervening
       equities that would make it inequitable to grant relief; and (8) any other factors
       relevant to the justice of the judgment under attack.
Seven Elves, 635 F.2d at 402 (citing United States v. Gould, 301 F.2d 353, 355-56 (5th Cir.
1962) (citation omitted)).
         Relief from judgment under RCFC 60(b) can be obtained for the specific reasons listed in
RCFC 60(b) (1)-(5) or pursuant to the “catch-all” provision of RCFC 60(b) (6), which allows
relief “for any other reason.” RCFC 60(b) (6). The catch-all provision of RCFC 60(b) (6) allows
a judgment to be vacated “whenever such action is appropriate to accomplish justice.” Klapprott
v. United States, 335 U.S. 601, 615 (1949). However, the catch-all provision should apply “only
when the basis for relief does not fall within any of the other subsections of Rule 60(b)(6).”
CNA Corp v. United States, 83 Fed. Cl. 1, 8 (2008) (quoting Fiskars, Inc. V. Hunt Mfg. Co., 279
F.3d 1378, 1382 (Fed. Cir. 2002)). Relief from a final judgment pursuant to RCFC 60(b)(6)
requires a showing of exceptional or extraordinary circumstances. Greenbrier v. United States,
75 Fed. Cl. 637 (2007) (citing Ackermann v. United States, 340 U.S. 193 (1950) and Louisville
Bedding Co. v. Pillowtex Corp., 455 F.3d 1377, 1380 (Fed. Cir. 2006)). This strict interpretation
of the broad text of RCFC 60(b)(6) is necessary to preserve the “finality of judgments.”
Kennedy, 99 Fed. Cl. at 548. To construe the rule otherwise would let the “exception swallow the
rule.” Id. at 541 (citing United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010)).
         When determining if extraordinary circumstances exist, the court must consider the level
of fault which can be attributed to the individual seeking relief. “In the vast majority of cases
finding that extraordinary circumstances do exist so as to justify relief, the movant is completely
without fault....” CNA Corp., 83 Fed. Cl. at 8 (citing Moore’s Federal Practice § 60.48[3][b] (3d.
2008). “There must be an end to litigation someday, and free, calculated, deliberate choices are
not be relieved from.” See Ackermann, 340 U.S. at 211-12 (1950). “[T]he impact of tactical
litigation decisions that prove to be unsuccessful” is not included among the “exceptional or
extraordinary circumstances” as required under RCFC 60(b)(6). Greenbrier v. United States, 75


                                                6
Fed. Cl. 637, 641 (2007). A motion pursuant to Rule 60 is “not available simply to relitigate a
case.” Wagstaff v. United States, 595 Fed. Appx. 975, 978 (Fed. Cir. 2014)
        In considering Rule 60(b) motions, courts have also weighed the merits of the underlying
claim in determining whether relief from judgment is appropriate. See, e.g., Curtis v. United
States, 61 Fed. Cl. 511, 512 (2004). However, “a litigant, as a precondition to relief under Rule
60(b), must give the trial court reason to believe that vacating the judgment will not be an empty
exercise.” Id. (quoting Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v.
Superline Transp. Co., 953 F.2d 17, 20 (1st Cir. 1992).
IV. EVALUATING PETITIONER’S MOTION

A. Petitioner has failed to establish existence of “extraordinary circumstance” under
   RCFC 60(b)(6)

       1. Dr. Shane’s indictment is not an “extraordinary circumstance” under RCFC
          60(b)(6)
        Dr. John Shane was indicted by a grand jury in 2008 for his involvement in an alleged
will forgery. The indictment was subsequently lifted and the will was upheld in August 2012.
Response at 5-6, ECF No. 96 (citing Riley Yates, Wills John Karoly filed for brother's estate are
upheld in court, The Morning Call (August 14, 2012), http://articles.mcall.com/2012-08-
14/news/mc-northampton-john-karoly-will-dispute-20120814_1_kim-luciano-joanne-billman-
billman-and-candice-pamerleau).
       Petitioner claims that the indictment of her expert was the sole reason for the dismissal of
her case. Motion to Vacate at 1, ECF No. 94. She contends that the indictment of Dr. Shane
forced her to rescind Dr. Shane’s expert reports since she could not in good faith have had Dr.
Shane testify at the hearing. Reply at 2, 6, ECF No. 97. Thus, she argues that her motion for
dismissal was involuntary. Id. at 4; Motion to Vacate at 1, ECF No. 94.
        Petitioner alleges that Mr. Gallagher discovered Dr. Shane’s indictment “essentially on
the eve of trial”, which was scheduled to take place on May 24, 2013. Reply at 6, ECF No. 97.
However, nowhere does Petitioner mention that Dr. Shane was indicted four years prior to his
reports being filed with the court, nor that he was exonerated at least a year prior to the dismissal
of Petitioner’s case. See Response at 5-6, ECF No. 96.
         The undersigned notes that Petitioner never referenced Dr. Shane’s indictment as a
reason for requesting dismissal. See Motion for Judgment on Administrative Record, ECF Nos.
79, 80. Petitioner also did not inform the Court of the problem with Dr. Shane as grounds for
continuing the hearing for purposes of obtaining a different expert’s opinion. Rather, Petitioner’s
then-attorney, Mr. Gallagher, cited a lack of evidence, both scientific and factual, to sustain the
case as the reason for Petitioner’s requested dismissal. Motion to Dismiss at 1, ECF No. 81; see
also Order, ECF No. 78 (counsel stated there was not “sufficient evidence to proceed with
litigating this case.”) Petitioner also cited her intention to file in civil court if her motion to
dismiss was granted. Id. at 2. The first mention of Dr. Shane’s indictment was in Petitioner’s
Motion to Vacate Judgment. Motion, ECF No. 94.



                                                  7
        In addition, contrary to Petitioner’s assertion, Dr. Shane’s expert reports were never
rescinded. In fact, the undersigned was in the process of considering the reports in the course of
writing a ruling on the record. In the interim, Petitioner decided to seek a dismissal for
insufficient proof, “acknowledging that insufficient evidence exists to demonstrate entitlement to
compensation.” Motion to Dismiss, ECF No. 81.
       While Petitioner had no control over her expert’s indictment, the fact of that indictment
under the totality of the circumstances discussed herein does not constitute an extraordinary
circumstance under RCFC 60(b)(6).
       2. Change in litigation strategy is not an “extraordinary circumstance” under
          RCFC 60(b)(6)
         In her motion to dismiss, Petitioner cited the lack of evidence as a reason for requesting
dismissal. Motion to Dismiss at 1, ECF No. 81. That motion was granted on January 9, 2014, and
judgment was entered on January 14, 2014. Judgment, ECF No. 84. Petitioner asked for leave to
file in civil court which the undersigned granted. Election to File Civil Action at 1, ECF No. 85.
Following the dismissal, Petitioner was granted $35,286.07 in attorney fees and costs. Decision,
ECF No. 87. On January 13, 2015, Petitioner filed this Motion to Vacate Judgment. Motion, ECF
No. 97.
        A motion under Rule 60 is not available simply to relitigate a case—it is an avenue to
secure “extraordinary relief ... which may be granted only in exceptional circumstances.”
Wagstaff, 595 Fed. Appx. at 978 (citations omitted). Petitioner made a conscious, deliberate, and
voluntary decision to ask for dismissal of her case in order to bring it to an alternate jurisdiction.
Motion, ECF No. 81. Petitioner’s request for leave to file in civil court and to not have the
decision of this court binding on courts of other jurisdictions, for a dismissal in order to file that
civil action, was all a well thought-out legal strategy. Such deliberate and conscious choice is not
to be dismissed just because it was unsuccessful, no matter how compelling the reasons for the
change. Greenbrier, 75 Fed. Cl. at 641. “There must be an end to litigation someday, and free,
calculated, deliberate choices are not be relieved from.” Ackermann, 340 U.S. at 211-12.
        Even assuming that the dismissal was involuntary, Petitioner still made a deliberate,
conscious choice not to ask for review of the dismissal or appeal the judgment. “It is well settled
that Rule 60(b)(6) ‘cannot be employed to toll, extend, or waive the time period to appeal.’”
Blake, 2014 WL 7331948, at *5 (citing Widdoss v. Sec’y of Health & Human Servs., 989 F.2d
1170, 1178 (Fed. Cir. 1993)); Waller v. Sec’y of Health & Human Servs., 76 Fed. Cl. 321, 324-
25 (2005); Patton v. Sec’y of Health & Human Servs., 25 F.3d 1021, 1028-29 (Fed. Cir.1994).
Petitioner cannot now avoid the consequences of such tactical choices made on the Petitioner’s
part.
       The undersigned finds that Petitioner’s motion to vacate judgment is an attempt to
remedy the results of her failed litigation strategy, and that such an attempt is not an
“extraordinary circumstance” under RCFC 60(b)(6).




                                                  8
B. Petitioner had an opportunity to present the merits of her case before she chose
   dismissal
    “[L]iberal construction of Rule 60(b) is appropriate in cases where the policy favoring the
resolution of cases on their merits is at stake --- i.e. in cases where the judgment from which
relief is sought is either a default judgment or a dismissal for failure to prosecute.” Mora v. Sec’y
of Health & Human Servs., 2015 WL 4455027, at *10 (Fed. Cl. June 30, 2015)(citation omitted).
Thus, where an “attorney has affirmatively misled the client, and/or effectively abandoned the
client so that the attorney is no longer acting as the client’s agent,” a motion to vacate judgment
will be granted. Id. See also Freeman v. Sec’y of Health & Human Servs., 35 Fed. Cl. 280
(1996) (Rule 60(b) (6) motion to vacate granted where counsel’s gross negligence resulted in
default judgment against petitioners); Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1171-72 (9th
Cir. 2002) (granting motion to vacate pursuant to Rule 60(b)(6) where plaintiff’s counsel failed
to reply to court orders multiple times, resulting in dismissal for failure to prosecute.). By
contrast, where a petitioner voluntarily moves to dismiss her case in order to file in civil court, a
motion to reopen pursuant to Rule 60(b) (6) will be denied. Mora, 2015 WL 4455027, at *10.
         The original proceedings of the instant case lasted for over four years, with Petitioner
given ample opportunity to make her case on the merits. She was given multiple extensions to
procure and file favorable expert reports. See, e.g., Order granting Motion for Extension of
Time, ECF No. 36; Scheduling Order, ECF No. 43 (stating that Petitioner shall file expert report
by no later than May 2, 2011); Scheduling Order, ECF No. 46 (ordering Petitioner’s expert
report to be filed by July 1, 2011); Status Report Order, ECF No. 55 (explaining that Petitioner
shall file a status report informing the court of “progress in obtaining a supportive medical
opinion” by November 4, 2011); Order to Show Cause, ECF No. 57; Scheduling Order, ECF No.
59 (stating that Petitioner’s expert report is due by March 26, 2012). Various status conferences
were held, including one in which the merits of Petitioner’s case as presented in Dr. Shane’s
expert report were discussed. Scheduling Order, ECF No.64. An entitlement hearing was set
before Petitioner decided to opt out of the Vaccine Program. Order, ECF No. 73.
        The undersigned finds that Petitioner was given full opportunity to try her case on merits,
and relief from the dismissal she sought voluntarily through RCFC 60(b) is inappropriate.
C. Petitioner lacks meritorious claim at the time of dismissal
        Petitioner claims that she now has sufficient medical evidence to prove that her injuries
were caused by her vaccination. Motion to Vacate, ECF No. 94. Petitioner provided two new
expert reports along with her motion to vacate judgment that she believes supports her claim that
her vaccinations were the cause in fact of her injuries. Pet’r’s Exs. 24, 26. Petitioner has failed to
inform the court of why the evidence of these two expert reports was not available before the
dismissal. Petitioner was given an extremely long period of time to find expert reports that
support her claim (almost four years), but she was unable to do so despite sending her medical
records to several medical specialists. Response to Order to Show Cause at 1, ECF No. 58.
       However, since the two new reports are not based on evidence unavailable before the
dismissal of her case, the reports are not relevant to the decision on this motion. To the extent a
review of the merits is required by factor 5 of Seven Elves, therefore, the review of the merits

                                                  9
here is based on the medical records and the expert reports that were filed in the Court before the
dismissal. Seven Elves, 635 F.2d at 396 (discussing that a factor in ruling in a Rule 60(b) Motion
is deciding whether judgment was a dismissal with no assessment of merits). After reviewing the
record, the undersigned finds that there is a lack of reliable evidence to support Petitioner’s claim
that the Tetanus booster and Menactra vaccine administered to her on April 14, 2006 caused her
acute myopathy. Petition at 1.
        The medical records indicate that Petitioner complained of the symptoms of myopathy,
including fatigue and muscle weakness, before the vaccinations were administered. Pet’r’s Ex. 1
at 15-17. Petitioner provided no evidence to show that the vaccinations led to worsening of these
already existing symptoms. Petitioner failed to explain how her abnormal liver enzymes from
the tests done before the vaccinations were normal for her circumstances and not proof of her
existing acute myopathy; in his supplemental expert report Dr. Shane, vaguely pointed out a
possible connection between strenuous exercise, a viral illness, or stress and the high test results
but provided no literature to support his assertions. Pet’r’s Ex. 20 at 1. Mere assertions without a
scientific or medical basis are not preponderant evidence that meets the causation requirements
of the Program. Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548 (Fed. Cir. 1994)
(holding that a petitioner’s theory of causation must be informed by a “sound and reliable
medical or scientific explanation.”).
         Additionally, the record lacks any medical literature to support Dr. Shane’s assertions
that these particular vaccines can cause the aforementioned myopathy. His initial report
references “persistent immune hepatitis,” Pet. Ex. 18 at 2, but Petitioner did not receive a
hepatitis vaccine. Dr. Shane asserted in his supplemental report that “there is certainly a
relationship between vaccine administration and immune auto responses and there is plenty of
literature linking autoimmune reaction to acute myositis resulting from the attack on the viability
of muscle tissue by immune complexes,” but he again failed to introduce any information into
the record that would support this conclusory assertion or to connect the assertion to the specific
vaccinations received by Petitioner. Pet’r’s Ex. 20 at 1. Respondent’s expert noted that “[a]
literature review indicates that an acute myopathy, not otherwise specified, has not been
associated with a tetanus, diphtheria or meningococcal vaccination.” Resp’t’s Ex. A at 4. The
undersigned found no plausible medical theory in the record regarding how the Tetanus booster
or Menactra vaccination can cause the myopathy from which Petitioner suffers.
        The undersigned finds that Petitioner’s symptoms were present before the administration
of the vaccinations, and therefore, that the vaccinations did not cause Petitioner’s acute
myopathy. This finding is an additional weight on the scale in favor of the finality of judgment
and against vacating the judgment pursuant to RCFC 60(b)(6).
D. It is in the best interest of the judicial system to preserve the finality of judgment
        Petitioner in her Motion asserts that she did not have a full and fair opportunity to litigate
her case because her expert’s indictment led to dismissal of her case. Motion to Vacate, ECF No.
94. However, the record clearly indicates that Petitioner was given every opportunity to make her
case to the special master. The proceedings lasted for over four years, with Petitioner being given
several extensions to file medical records as well as expert reports, before being dismissed on
Petitioner’s own request. Petitioner was unable to find a reliable medical theory to prove a causal
connection between her vaccinations and her injury; by her own account she had contacted
multiple physicians and pathologists as potential experts before retaining Dr. Shane. See
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Response to Order to Show Cause at 1, ECF No. 58; Motion to Dismiss, ECF No. 81. Petitioner
herself admitted that she did not think there was enough evidence to receive compensation in the
Program. Motion to Dismiss at 1, ECF No. 81. The indictment and subsequent exoneration of
Petitioner’s expert was not even brought to the undersigned’s attention.
        Considering the eight factors discussed in Seven Elves, the undersigned finds that in this
case the need to preserve the finality of judgment outweighs the importance of ensuring that
litigants have a full and fair opportunity to litigate. See Seven Elves, 635 F.2d at 402. This is not
a case of default judgment, but a voluntary dismissal by Petitioner in order to file a civil action.
If simply finding new experts to opine under these circumstances was enough, no vaccine case
would ever be closed.
V. CONCLUSION
         Petitioner has provided no basis for relief from judgment under Vaccine Rule 36 and
RCFC 60. Petitioner has failed to demonstrate that such “extraordinary circumstances” exist as to
justify relief from judgment under RCFC 60(b)(6).
       Petitioner’s Motion to Vacate the Judgment is DENIED.
       IT IS SO ORDERED.
                                               s/Lisa D. Hamilton-Fieldman
                                               Lisa D. Hamilton-Fieldman
                                               Special Master




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