In the Um'ted States Court of Federal Claiitts
OFFICE OF SPECIAL MASTERS `
No. 12-84V
Filed: May 30, 2014

SHARON E. RICARD, *
* Special l\/laster Gowen
Petitioner, *
*
v, * Dismissal Decision; Failure to
* Produce Expert Reports; Order to
SECRETARY OF HEALTH * Show Cause; Tetanus, Dipthei'ia,
AND HUl\/IAN SERVICES, "‘ and Pertussis (Tdap) Vaccine;
’*‘ lnfluenza (Flu) Vaccine; Disfiguriiig
Respondent. * Lunip on Upper Arm.

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Sharon E. Ricard, pro se, Antioch, CA.
Ryan Pyles_, United States Dept. of Justice, Washington, D.C., counsel for respondent.

i)iicisioi\i‘

On Febi'uary 6, 20l2, Ms. Ricai'd (petitioner) filed a petition, pro se, pursuant to the
National Vaccine injury Compensation Program.z l\/[s. Ricard alleged that she suffered from a
dist`iguring lump on her upper left arm as a result of a Tetanus, Diptheria, and Pertussis ("Tdap")
vaccination she received on l\/Iay 21, 2010, Petitioii ("Pet.") at l. The information in the record
does not show entitlement to an award under the Act, For the reasons that follow, this case is

dismissed for insufficient proof.

' Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of F ederal Claims‘
website, in accordance with the E-Governmeiit Act of 2002, Pub. L. No. 107-347, § 205, l 16
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with
Vaccine Rule l8(b), a party has 14 days to identify and move to redact medical or other
inforination, that satisfies the criteria in § 300aa-l2(d)(4)(B). Furthei', consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. Iif, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
such material will be redacted fi'oni public access

2 T he National Vaccine injury Coinpensation Program is set forth in Part 2 of the National
Childhood Vaccine injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as aineiided,

42 U.S.C. §§ 300aa-l to -34 (20()6) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.

l

I. Factual Background

l\/ls. Ricard was born on December 31, l96l. Pet. Ex. 6 at 3. She received a Tdap
vaccination on May 21, 2010, and a flu vaccine on October 13, 2010.3 Pet. Ex. 3 at 1; Pet. Ex. 8
at l; Pet. Ex. 7a at 1.4 lt is unclear, from the medical records that have been filed, whether

petitioner was vaccinated in her right or her left arm.

According to a document authored by petitioner and filed as Exhibit 1, she received the
October 13, 2010 flu shot in her left arm and subsequently "experience[d] some discomfort, with
soreness, head ache, fever, and redness with a slight bump, at first, for a few days." Pet. Ex. 1 at
1-2. By "the end of December 2010," petitioner noticed a "small to medium bump" under her

sl<in, which she believed resulted from the flu vaccination. l;d.

Petitioner states that she made an appointment with her primary care physician, Dr.
Piriyatharisani Gunanayagam, on February 17, 2012,5 for an assessment of the pain she was
experiencing in her left arm. l_d. at 2. Petitioner asked Dr. Gunanayagam whether the pain was

caused by the flu shot, and Dr. Gunanayagam replied in the negative. li

According to petitioner, her arm was examined by physical therapist Ryszard Haj duczek
on May 19, 2011. l;d. at 3. Petitioner states that Mr. Hajduczek "was not sure about the flu shot

or not." §

Petitioner had a third medical appointment regarding the mass on her left arm on
February 27, 2012. l;d. According to petitioner, Elvira Parks, a physician’s assistant, opined that

3 lt is unclear whether petitioner is alleging that her injuries were caused by the Tdap vaccination
she received in May of 2010 or the flu vaccination she received in October of 2010. The petition
alleges that the vaccine at issue is a tetanus vaccine, and the medical records confirm that
petitioner received a tetanus vaccine on May 21, 2010. However_. petitioner"s Exhibit l, which is
a document authored by petitioner on September 13, 201'-.3, identifies the vaccine at issue as a
"flu shot," and the medical records confirm that a flu shot was admiiiistered on October 13,
2010. One of Special Master Vowell’s Status Conference Orders refers to the relevant vaccine

as a flu vaccine, S_ee_ Order, dated September 17, 2013, at 1.

lt is ultimately irrelevant, for purposes of the outcome reached in this case, whether the vaccine
at issue was a Tdap vaccine or a flu vaccine,

4 Petitioner filed two sets of exhibits with duplicate exhibit numbers. The first set of exhibits,
filed on September 4, 2013, will be referred to as Pet. Ex. 1 through Pet. Ex. 7; the second set of
exhibits, filed on November 14, 2013, will be referred to as Pet. Ex. la through Pet. Ex. 7a.

5 February 17, 2012 was approximately 16 months after the flu vaccine was administered and

a roximatel 21 months after the Tda vaccine was administered. Petitioner filed an "After
1313 Y 13 _ _

Visit Summary" associated with this appointment which contains no substantive information

about the appointment. Pet. Ex. la at 29.

the mass was, in fact, a lipoma.§

Petitioner ultimately underwent a biopsy and surgical removal of the lump in l\/Iarch of
2012. l_d. at 4. On the basis of the biopsy, Dr. Christopher Solis confirmed that the lump was a

"benign (non cancer) lipoma." Pet. Ex. 11 at 2. 7

On April 26, 2012, petitioner sent an e-mail to Dr. Solis in which she stated that her
"internal arm [was] a[] little sore," and asked if this was normal. Pet. Ex. 11 at 6. Dr. Solis

replied that it was. lg

On June 1, 2012, petitioner sent Dr. Solis another email, noting that she had been "getting
needle sensation [and] numbness running down [her] left arm." ld_. at 7. Petitioner believed that
her symptoms were "due to [her] surgery on [her] left arm." l;d. In response to Dr. Solis’ request
for more information, petitioner stated that the sensation was "outside of [her] left [a]riri,"
"[s]houting [sic] pain on top of [her] hand, [t]he pointer finger, middle finger and [her] thumb,"
and that was particularly bothered by the numbness she felt. l_d. at 8.

According to petitioner, she had a final appointment with Dr. Solis on July 9, 2012,
during which he diagnosed her with carpal tunnel syndrome. Pet. Ex. 1 at 5. At a July 18, 2012
appointment with "Nero lab Electromagraphy NB," petitioner says, her carpal tunnel diagnosis

was confirmed. l_d.

Aside from email correspondence between petitioner and her doctors, the medical records
contain no substantive information regarding the doctors’ impressions of petitioner’s injury.
l\/loreover, petitioner has filed no evidence that any of her treating physicians attributed her
injury to either of her vaccinations.

II. Procedural Background

This case was initially assigned to Special Master Zane, who held status conferences on
June 15, 2012, August 10, 2012, December 18, 2012, February13, 2013, May 22, 2013, and July
17, 2013. At the initial status conference on June 15, 2012, petitioner appeared pro se and was
given the opportunity to search for legal representation prior to the imposition of a deadline for
the filing of her medical records. Order, dated June 18, 2012, at l. At the August 9, 2012 status
conference, petitioner again expressed an interest in seeking legal advice, and she was given the
opportunity to do so. Order, dated August 10, 2012, at 1-2. At the December 18, 2012 status
conference, petitioner stated that she had contacted an attorney "who may represent her," and
that she was providing the attorney with information about her case. Order, dated December 19,

6 A lipoma is a "benign, soft, rubbery, encapsulated tumor of adipose tissue, usually composed of
mature fat cells." Dorland’s lllustrated Medical Dictionarv. 32"d Edition ("Dorland’s") at 1063.

7 Dr. Solis’ diagnosis is taken from an email that petitioner received on April 4, 2012 and later
filed as an exhibit. § Pet. Ex. 11 at 2. The date on which the biopsy took place is unclear from

the medical records that have been filed.

2012, at l.

Petitioner still had not retained counsel or filed any medical records at the time of the
fifth status conference, which was held on May 22, 2013, approximately 15 months after the
petition was filed. Order, filed May 23, 2013, at 1. Petitioner was warned that if she had not
retained counsel by the time of the next status conference, she should "come prepared to set a
schedule for the filing of pertinent medical records and obtaining an expert report." l;d.
Petitioner was advised of her burden of proof and of of her responsibilities with respect to
participation in the proceedings and submission of documents to the court. l;d. at 2-3.

At the next status conference, which was held on July 17, 2013, petitioner again appeared
pro se. Order, dated July 19, 2013, at 1. Petitioner stated that she was still attempting to retain
counsel. l_d_. ln light of the length of time that had elapsed since the petition was filed, Special
l\/laster Zane set deadlines for petitioner to file medical records. l;d.

Petitioner filed Exhibits 1 through ll on September 4, 2013. 'l`hat same day, the case
was reassigned from Special l\/laster Zane to Special Master Vowell.

During a status conference on September 16, 2013, Special Master Vowell "informed
petitioner that some of her medical records appear to be iiicomplete." Order, dated September
17, 20l3, at 1. Special Master Vowell also noted that there did not appear to be "`aiiy notation
associating petitioner’s flu vaccination with her injui'y." ii Special Master Vowell cited
Section 300aa-13 of the Vaccine Act and "inforined pelitioiiei' that [she] inay not make a finding
in her favor based on her claims alone, ‘unsubstantiatecl by medical records or a medical
opinion."’ l_c_l_. With respect to her search for an attorney, petitioner stated that her "efforts to
obtain representation [had] been unsuccessful due to the same evidentiary concerns [Special
Master Vowell] conveyed during the status conl`erence." l_d.

Special Master Vowell ordered respondent to file a status report regarding the
completeness of petitioner’s medical records, and directed petitioner to file a status report by
October 31, 2013, with an update on her search for an attorney. Order, dated September 17,
2013, at 1. Petitioner was "reminded that if she has not retained an attorney and/or found a
doctor to opine on her behalf in favor of vaccine causation by the date of the status conference
[to be set in mid-November 2013]," Special Master Vowell intended to set a deadline for her to

file an expert report. lgl_. at 2.

On September 30, 2013, respondent filed a status report in which she identified several
sets of outstanding medical records. Petitioner was directed to file the outstanding records by
November 18, 2013. Order, dated October 2, 2013, at 2. Petitioner was ordered to file a status
report regarding her search for an attorney by October 31, 2013. l_d.

Petitioner filed a status report on November 1, 2013, in which she stated that she had
again been in contact with an attorney, and that she was iii the process of deciding whether to
retain an expert. On November 14, 2013, petitioner filed aclditional medical recoi'ds, including
email correspondence with her physicians, as well as post-visit sumniaries, from 2008 to 2012.

g Pet. Ex. la - 7a.

On November 22, 2013, Special Master Vowell issued an Order directing petitioner to
file an expert report by February 20, 2014. Petitioner filed neither an expert report nor a motion
for extension of time by this deadline, though she did contact Special Master Vowell’s chambers
with an oral request for an extension; petitioner was directed to file a motion for extension in
writing, pursuant to Vaccine Rule 19. On March 4, 2014, Special Master Vowell issued a Show
Cause Order directing petitioner to file an expert report, or "otherwise show cause for why this
case should not be dismissed," by April 2, 2014. Order, dated March 4, 2014, at 2.

The Court clerk received a faxed request for additional time from petitioner on l\/larch 10,
2014, and this case \=vas reassigned to the undersigned on M'arch 18, 2014. On the basis of
petitioner’s faxed request_. the undersigned granted petitioner until May 5, 2014 to file her expert
report or otherwise demonstrate compliance with the Show Cause Order. Order, dated March
25, 20 l 4, at 2. The undersigned warned petitioner that if her expert report was not filed by May

5 , 2014, the case would probably be dismissed.

To date, petitioner has filed neither an expert report nor a motion for extension of time to
file her expert report.

III. Requirement for an Expert Rep0rt or Supportive Medical Records

When a petitioner fails to comply with Court orders to prosecute her case, the Court may
dismiss the case. Sapharas v, Sec’v of Healtli & l-~[Liman Servs., 35 Fed. Cl. 503 (1996);
Tsei»;ouras v_ See’v ofl-lealth & Human Servs., 26 Cl. Ct. 439 (1992), a@, 991 F.2d 819 (Fed.
Cir. 1993) (table); Vaccine Rule 21(c); see also Claiicle E. Atkins Enters.. lnc. v. United States,
889 F.2d 1180, 1183 (Fed. Cir. l990)(affirming dismissal of case for failure to prosecute for
counsel’s failure to submit pre-trial memorandum); Adkins v. United States, 816 F.2d 1580,
1583 (Fed. Cir. 1987) (affirrning dismissal of cases for failure of party to respond to discovery
requests). Ms. Ricard has failed to obtain counsel and, more importantly, she has failed to obtain
an expert report or other sufficient medical documentation in support of her claim of a vaccine-
caused injury. Thus, the undersigned finds it appropriate to dismiss this case for failure to

prosecute.

Additionally, to prove causation, petitioner must "show by preponderant evidence that
the vaccination brought about [the] injury by providing: (1) a medical theory causally connecting
the vaccination and injury; (2) a logical sequence of cause and effect showing that the
vaccination was the reason for the injury; and (3) a showing of proximate temporal relationship
between vaccination and injury." l\/loberly, 592 F.3d at 1322 (citing Althen v. Sec’v of Health &
Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Petitioner bears the burden of proving a
prima facie case by a preponderance of the evidence. S_ee_ 42 U.S.C. § 300aa-l3(a)(l)(A); s_e_e
also l\/loberlv v. Sec’v of Health & Human Services, 592 F.3d 1315, 1320 (Fed. Cir. 2010).

The preponderance standard applies to each element of petitioner’s proof. For example,
with regard to the medical theory, the theory must be "persuasive" - that is, specific to
petitioner’s case and supported by a "reputable", i.e., reliable, scientific or medical explanation.
Moberly, 592 F.3d at 1322 (holding that "[a] petitioner must provide a reputable medical or
scientific explanation that pertains specifically to petitioner’s case"); Althen, 418 F.3d at 1278

(holding that "[a] persuasive medical theory is demonstrated by ‘proof of a logical sequence of
cause and effect showing that vaccination was the reason for the injury[,]’ the logical sequence
being supported by ‘reputable medical or scientific explanation[,]’ . . ."(citing Grant v. Sec’y of

Health & Human Servs., 956 F.2d 1133, at 1148 (Fed Cir. 1992)).

A petitioner may not be awarded entitlement under the Vaccine Act based on petitioner’s
claims alone, Rather, the petition must be supported by either medical records or by the opinion
of a competent physician. §§ 42 § 300aa-l3(a)(l). ln this case, because the medical records do
not support petitioner’s clairn, a medical opinion must be offered in support.

Petitioner has not offered a supportive expert report in support of her claim. ln addition,
there is no evidence that any of Ms. Ricard’s treating physicians attributed any of her conditions
to either her 'l`dap or her flu vaccinations. There is also no evidence in the record of appropriate

temporal relationship between l\/ls. Ricard’s vaccination(s) and the onset of her injuries.

IV. Conc|usion

Therefore, Ms. Ricard’s petition is hereby DENIED. This case is dismissed for failure to
prosecute and for insufficient proof. ln the absence of a motion for review, the Clerk is directed

to enter judgment accordingly.

IT IS SO ORDERED.
w

Thomas L. Gowen
Special Master

