    In the United States Court of Federal Claims
                           OFFICE OF SPECIAL MASTERS
                                           No. 15-848V
                                      Filed: March 10, 2017

*********************
SHEILA GOINS,              *
                           *
               Petitioner, *
v.                         *                          Ruling on the Record;
                           *                          Insufficient Proof of Vaccine
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
               Respondent. *
*********************

Leah VaSahnja Durant, Esq., Law Offices of Leah V. Durant, Washington, DC, for petitioner
Alexis B. Babcock, Esq., U.S. Department of Justice, Washington DC, for respondent.

                                           DECISION 1

Roth, Special Master:

         On August 10, 2015, Sheila Goins [“petitioner” or “Ms. Goins] filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10,
et seq. 2 [“Vaccine Act” or “Program”]. The petition alleges that Ms. Goins suffers from
neurological symptoms and Guillain-Barre Syndrome (“GBS”) caused by an influenza (“flu”)
vaccination received on August 8, 2012. Petition at ¶¶ 1, 3-4. The petition further alleges that
Ms. Goins’ injuries persisted for more than six months. Id. at ¶ 6.




1
  Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified
as amended at 44 U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), a party
has 14 days to identify and move to delete medical or other information that satisfies the criteria
in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction
must include a proposed redacted decision. If, upon review, I agree that the identified material
fits within the requirements of that provision, I will delete such material from public access.
2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986).
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).

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       For the reasons stated herein, I find that the petitioner has failed to provide proof of
vaccination and thus, the case is dismissed.

                                        I. Procedural History

       Ms. Goins filed her petition on August 10, 2015. Petition (“Pet”), ECF No. 1. This case
was assigned to Chief Special Master Dorsey. 3 An initial status conference was conducted on
October 1, 2015. Order, issued Oct. 1, 2015, ECF No. 8.

        On October 2, 2015, petitioner filed her medical records. See generally, Petitioner’s
Exhibits (“Pet. Ex.”) 1-7. Petitioner filed a Statement of Completion on October 6, 2015. Pet.
Statement of Completion, ECF No. 10. A status conference was held on November 18, 2015.
Petitioner advised that she was unable to locate a record of her influenza vaccination. She
requested additional time to either produce some account of the vaccination or request a motion
for a ruling on the record or a motion for a voluntary dismissal. Petitioner was ordered to file a
status report by December 18, 2015 regarding her efforts to provide documentation of her
vaccination. Order, issued Nov. 18, 2015, ECF No. 13 at 1.

        Petitioner filed a status report (“Pet. S.R.”) on December 18, 2015 stating that petitioner
was still gathering evidence to prove administration of vaccination, but would require an
additional 30 days. Pet. S.R., ECF No. 14, at 1. Petitioner was ordered to file a status report by
January 21, 2016, updating the court on her efforts. Non-PDF Order, issued Dec. 21, 2015.

      On January 21, 2016, petitioner filed four affidavits in support of her petition. Pet. Ex. 8-
11, ECF No. 15.

       At a status conference held on February 8, 2016, the parties discussed the affidavits.
There remained a lack of any supporting documentation showing the administration of an
influenza vaccine. Respondent’s counsel raised concerns that this case lacked reasonable basis. I
ordered petitioner to file the hospital’s billing records for the charges for petitioner’s
hospitalization in August of 2012. Order, issued February 8, 2016, ECF No. 16, at 1.

        On March 10, 2016, petitioner filed a Motion for Extension of Time (“MFET”) in order
to obtain the billing records from the hospital. MFET; ECF No. 17. The motion was granted,
extending the deadline until March 30, 2016. Non-PDF Order, issued Mar. 10, 2016.

        On March 30, 2016, petitioner filed Medicare/CMS billing records for 2011 and 2012.
Pet. Ex. 12-13, ECF No. 18. The August 2012 billing records showed billing for petitioner’s
gallbladder surgery, post-surgical follow-ups, and hospital stays at Skyridge and Memorial
Hospital. There was no billing record reflecting an influenza or any other vaccination
administered to petitioner in August of 2012. See Pet. Ex. 12 at 3-8, ECF No. 18.

        The Medicare/CMS billing record for 2011 contained a charge for the influenza vaccine
petitioner received on December 9, 2011. Id. at 8. Petitioner did not file any billing records
generated directly from Tennova Healthcare Cleveland (formerly Skyridge Medical Center).
3
    This case was reassigned to Special Master Roth on October 20, 2015.

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         A status conference was held on May 17, 2016. The billing records from Medicare/CMS
were discussed. Respondent’s counsel stated that an investigation into records of the Center for
Disease Control (“CDC”) showed that there were no flu vaccines available in August of 2012.
Respondent’s counsel was ordered to file the CDC records referred to. Petitioner’s counsel
requested a fact hearing. Petitioner was ordered to file statements from her physician regarding
whether petitioner received a flu vaccination on August 8, 2012. Counsel were to consult and
file a joint status report regarding hearing dates and location. Order, issued May 17, 2016, ECF
No. 20.

       On June 13, 2016, respondent filed the 2012 -2013 Seasonal Influenza Vaccine Dose
Distribution Schedule from the CDC showing that the influenza vaccine was not available until
September 7, 2012. Resp. Ex. A, ECF No. 21.

       Petitioner filed a joint status report (“Joint S.R.”) on July 18, 2016 stating that parties
were available for a fact hearing in April of 2017 at the federal courthouse in Chattanooga,
Tennessee. Joint S.R., ECF. No. 22.

       Petitioner requested and was granted two motions for extensions of time, on July 18,
2016 and on September 2, 2016, to secure proof of vaccination. Petitioner was unable to locate
any documentary proof that she received an influenza or any vaccination in August of 2012.

         On October 2, 2016, petitioner filed a Motion to Issue a Subpoena on Tennova
Healthcare. Petitioner was seeking all medical records pertaining to petitioner as well as vital
statistics relating to the type and number of flu vaccinations administered at the hospital during
August of 2012. ECF No. 26. That motion was granted. Order, issued Oct. 3, 2016, ECF No. 27.

       On November 22, 2016, petitioner filed the documents received from Tennova
Healthcare in response to the subpoena. The documents from Tennova confirmed that no
influenza vaccinations were administered at the hospital in August of 2012 to petitioner or any
other patients. Pet. Ex. 14, ECF No. 29.

         A status conference was held on November 22, 2016. The parties discussed the records
filed from Tennova Healthcare. Petitioner’s attorney agreed that there was no proof of
vaccination in this case and requested time to file a Motion for a Ruling on the Record. A Motion
for a Ruling on the Record was to be filed no later than January 27, 2017. Order, issued Nov. 22,
2016, ECF No. 30.

      Petitioner filed her Motion for a Ruling on the Record on January 27, 2017. ECF No. 31.
Respondent filed its response on February 10, 2017. Resp. Response, ECF No. 32.

       This matter is now ripe for decision.




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                                    II. Relevant Medical History

    A. Petitioner’s Health Prior to the Alleged Casual Vaccination

        Petitioner was born on May 3, 1967. Petitioner’s medical history was significant for
chronic migraines, chronic back pain, left knee pain/osteoarthritis, right leg and foot paresthesias,
chest pain, hypertension, gastroesophageal reflux disorder (“GERD”), anxiety, depression,
fatigue and bipolar disorder. She smoked about a pack a cigarettes per day for 27 years. See
generally, Pet. Ex. 4 at 31; 42-63.

        On December 9, 2011, petitioner presented to her primary care physician, Dr. Campbell
with complaints of chronic back pain, migraines, fatigue, sore throat, mild cough and
gastrointestinal symptoms. She received an influenza vaccine. Id. at 2; 36-37.

        On January 11, 2012, petitioner presented to Dr. Campbell with multiple complaints,
including right foot pain that was gradual over the past 5 days, very severe last night, pain of the
right great toe and pain all over. Petitioner complained that even her skin hurts and the pain goes
“down to the muscles and even the bones.” Id. at 33-34.

        On March 21, 2012, petitioner presented to Dr. Campbell for follow up of acute and
chronic issues. She had a sore throat with occasional shortness of breath, dry cough, nausea,
fever and headaches with muscle aches. She was prescribed Augmentin and Tylenol for pain.
She was told to rest. Id. at 30-31.

        On August 5, 2012, petitioner presented to the emergency room at Skyridge with severe
abdominal pain. She was admitted the same day and diagnosed with cholelithiasis and
cholecystitis. 4 On August 6, 2012, petitioner had emergency gallbladder surgery. There were no
complications and she was discharged on August 8, 2012 with instructions to follow up the week
after surgery. See generally, Pet. Ex. 7.

    B. Petitioner’s Health After the Alleged Vaccination

      Petitioner alleges that she received an influenza vaccination at the time of her discharge
from Skyridge on August 8, 2012. Pet. at ¶¶ 1, 3-4; Pet. Ex. 8 at 1.

        On August 16, 2012, petitioner presented to Dr. Knabb for a follow up appointment as
directed. Pet. Ex. 7 at 1. The records state that the petitioner is “doing well.” Id. at 2. Her
incisional sites were noted to be healing. A scattered rash believed to be from IV antibiotics
received at the hospital was noted on her body. She noted discomfort in her mouth, thought to be
thrush. Id. at 2. There was no fever, no disorientation, no discoordination, no joint pain, no
weakness or dizziness. Petitioner had normal range of motion. Id. She was encouraged to
continue using Benadryl for the rash. Id. at 3.



4
 Cholecystitis is inflammation of the gallbladder. STEDMAN’S POCKET MEDICAL DICTIONARY
137 (1st ed. 1987).

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          On August 20, 2013, petitioner was examined by Dr. Petersen at Dr. Campbell’s office.
She was noted to be 9 days post-surgery with complaints of sinus pressure and congestion,
irritation of the eyes, dizziness and constipation. Pet. Ex. 4 at 26-28. Petitioner denied any
neurologic changes, seizures, numbness, weakness, tingling, or visions problems. Id. at 26. Dr.
Petersen’s assessment was hypertension, constipation status post cholecystectomy, and allergic
rhinitis. Id. at 26-27. She was instructed to restart her blood pressure medication. Id. at 26.

        On August 23, 2012, petitioner returned to Skyridge complaining of body pain, general
fatigue, and numbness in her feet that had progressed up to her knees. Pet. Ex. 5 at 5. Blood work
and CT scan were unremarkable. Petitioner was transferred to Memorial Hospital for further
neurological monitoring. Id. at 8. Petitioner was admitted to the ICU at Memorial Hospital for
observation for possible Guillain-Barre syndrome (“GBS”). She was noted to be stable,
breathing comfortably, but was having difficulty forming a seal for sipping water. She
complained of diffuse pain, as well as significant anxiety. Id. at 5. Petitioner denied any recent
vaccinations. Id. Petitioner remained hospitalized for four days while her swallowing was
monitored. Id. She was reassessed on August 31, 2012, and given a soft diet and liquids. Id. She
was discharged from Memorial Hospital on September 1, 2012 and sent to Siskin for physical,
occupational and speech therapy with a diagnosis of GBS. Id. at 5, 10.

                                III. Evaluating Petitioner’s Claim

   A. Legal Standard

        Under the Vaccine Act, a petitioner may prevail on her claim by proving a “Table”
injury, in which causation is presumed or, alternatively, by proving an “off-Table” injury, in
which she identifies a causal link between the vaccine and the injury alleged. 42 U.S.C. §300aa
(2012). Providing proof of vaccination is a threshold matter in order to prevail under either
theory. 42 U.S.C. §300aa-11(c)(1)(A) and (B). Petitioner must show by a preponderance of the
evidence that the vaccine in question was administered. § 300aa–11(b)(1)(A). A special master
shall assess “the record as a whole” and may not “find that a petitioner received a vaccine ‘based
on the claims of a petitioner alone, unsubstantiated by medical records or by medical opinion.’”
Rich v. Sec'y of Health & Human Servs., No. 12-742V, 2013 WL 4476751 (Fed. Cl. Spec. Mstr.
July 26, 2013) (quoting 42 U.S.C. §300aa-13(a)(1)). Although contemporaneous medical records
as proof of vaccination is the best evidence, the records are not an absolute requirement. See
Centmehaiey v. Sec'y of Health & Human Servs., 32 Fed. Cl. 612, 621 (1995). In the absence of
contemporaneous proof of vaccination administration, special masters have also found that other
medical records which reference vaccine receipt may be sufficient. See Lamberti v. HHS, No.
99–507V, 2007 WL 1772058 at *7 (Fed. Cl. Spec. Mstr. May 31, 2007); Groht v. HHS, No. 00–
287V, 2006 WL 3342222 at *2 (Fed. Cl. Spec. Mstr. Oct. 30, 2006). “In addition to
corroborative medical records, lay testimony has been found to be a sufficient basis for finding
that a vaccine was administered as alleged.” Rich, 2013 WL 4476751, at *2 (citing Alger v. HHS,
No. 89–31V, 1990 WL 293408 at *2, 7 (Fed. Cl. Spec. Mstr. Mar. 14, 1990)).




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   B. Evaluating Petitioner’s Claim

               1. Affidavits

        Petitioner provided her own affidavit and the affidavits of her daughter, her mother, and
friend to support her claim of having received an influenza vaccine on August 8, 2012. Pet. Ex.
8-11.

        Petitioner stated in her affidavit that while she was getting ready to be released on August
8, 2012 from Skyridge, a nurse asked her if her tetanus and flu shots were up to date. Pet. Ex. 8
at 1. She responded that her flu shot was not up to date. Id. The nurse left and returned with a flu
shot and asked which arm she wanted the shot in. Id. Petitioner stated she wanted the shot in her
left because she is right handed and always gets a shot in her left. Id.

        Petitioner’s daughter, Cayla Maria Goins, submitted an affidavit. Pet. Ex. 10. Cayla
stated that she recalled that day because she had just gotten her learner’s permit and was excited
to drive. Pet. Ex. 10 at 1. Cayla stated that a nurse came to speak with her mother just prior to her
discharge and asked if her tetanus and flu shots were up to date. Id. She recalled her mother
stating that the tetanus was but not the flu shot. Id. Cayla stated the nurse returned 45 minutes
later and gave her mother a flu shot in her left arm in her presence. Id.

        Petitioner’s mother, Mary Coffey, submitted an affidavit. Pet. Ex. 11. Ms. Coffey stated
that she was present in the hospital on August 8, 2012, but not present in the room when
petitioner received the flu vaccine, because she was asked to leave the room so petitioner’s
drainage tube could be removed. Pet. Ex. 11 at 1. Ms. Coffey recalled a nurse asking petitioner if
she was up to date on her vaccines and petitioner saying she had not had the flu shot. Id. She
stated the nurse left the room to prepare the vaccine. Id.

       Petitioner’s friend, Jewell Henry, submitted an affidavit. Pet. Ex. 9. Ms. Henry stated that
she had a clear recollection of that day when petitioner received a flu shot “because she was
already so sick.” Pet. Ex. 9 at 1. Ms. Henry was not in the room when petitioner was given the
vaccination but recalls the petitioner telling her that the vaccine really hurt. Id.

               2. Billing Records and Other Documentation

         Although contemporaneous medical records are the preferred proof for showing the
administration of a vaccination, special masters may find proof of vaccination through other
reliable evidence. See Centmehaiey, 32 Fed. Cl. at 621. However, when circumstantial testimony
has been used, testimony from the administering physician was used to support the claim. See
Alger v. HHS, No. 89-31V, 1990 WL 293408 at *7 (Fed. Cl. Spec. Mstr. Mar. 14, 1990) (finding
that affidavits, backed up by oral testimony of both a parent and physician who administered the
vaccine to be “more than adequate to support a finding that the vaccine was administered.”).
Alternatively, a petitioner can use lay testimony that is corroborated by medical or billing
records that refer back to the vaccination at issue. See Lamberti v. Sec'y of Health & Human
Servs, No. 99–507V, 2007 WL 1772058, at *7.



                                                  6
       Petitioner obtained billing records for her medical care in 2011and 2012 which failed to
provide support for her claim that she received an influenza vaccine or any vaccination in August
of 2012. The records showed that she received an influenza vaccine on December 9, 2011. Pet.
Ex. 13 at 3, 8; see generally, Pet. Ex. 12.

        The documents filed in response to a subpoena served on Tennova Healthcare show not
only that there were no influenza vaccinations administered at the hospital in August 2012, but
that upon petitioner’s admission and discharge, records documented that she had been
“previously immunized this flu season,” and was not given an influenza vaccine “due to [it] no
longer [being] influenza season.” Pet. Ex. 14 at 2-3.

        Though ordered to do so, there was no corroborating affidavit from any physician, nurse
or other medical professional that an influenza vaccination had been administered.

       Due to the absence of contemporaneous medical records, or any persuasive
documentation, petitioner has failed to meet the preponderance of the evidence standard required
to show administration of a vaccination in August of 2012. See Lamberti, No. 99–507V, 2007 W
L 1772058 at *7; Groht, No. 00–287V, 2006 WL 3342222 at *2; § 300aa–11(b)(1)(A).

                                          IV. Conclusion

       The petitioner herein has failed to produce evidence of vaccination and thus failed to
demonstrate entitlement to compensation. Her petition is therefore dismissed. The clerk shall
enter judgment accordingly.

              IT IS SO ORDERED.
                                                           s/Mindy Michaels Roth
                                                           Mindy Michaels Roth
                                                           Special Master




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