In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 15-120V
                                     Filed: February 11, 2016
                                        Not to be Published

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TERRA SCHALLER,                            *
                                           *
              Petitioner,                  *     Petitioner’s motion for a decision
                                           *     dismissing her petition granted;
 v.                                        *     hepatitis B vaccine; Pneumovax;
                                           *     cellulitis
SECRETARY OF HEALTH                        *
AND HUMAN SERVICES,                        *
                                           *
              Respondent.                  *
                                           *
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Andrew D. Downing, Phoenix, AZ, for petitioner.
Heather L. Pearlman, Washington, DC, for respondent.

MILLMAN, Special Master

                                               DECISION 1

       On February 9, 2015, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that hepatitis B vaccine administered
October 10, 2013 caused her pain, numbness, and loss of mobility in her right arm, shoulder, and
hand. See Pet. at ¶ 16. On the same date, and in the same arm, petitioner also received PPV23
(“Pneumovax”), a vaccine not listed on the Vaccine Injury Table and, therefore, not compensable
under the Vaccine Act. Also on the same date, she received influenza vaccine and tetanus-
diphtheria-acellular pertussis (“Tdap”) in her left arm.


1
 Because this decision contains a reasoned explanation for the special master’s action in this case, the
special master intends to post this decision on the United States Court of Federal Claims’ website, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services). Vaccine Rule 18(b) states that all decisions of the special
masters will be made available to the public unless they contain trade secrets or commercial or financial
information that is privileged and confidential, or medical or similar information whose disclosure would
constitute a clearly unwarranted invasion of privacy. When such a decision is filed, petitioners have 14
days to identify and move to redact such information prior to the document’s disclosure. If the special
master, upon review, agrees that the identified material fits within the categories listed above, the special
master shall redact such material from public access.
      On February 9, 2015, the case was assigned to former Chief Special Master Denise K.
Vowell.

        On May 15, 2015, petitioner filed the expert medical report of Dr. David Axelrod, an
immunologist, stating petitioner’s October 10, 2013 hepatitis B vaccination caused cellulitis and
abscess of her right arm and shoulder. Ex. 14, at 1, 2. He attributed the cellulitis to petitioner’s
hepatitis B vaccination rather than to her Pneumovax because he did not find evidence of
homology between Pneumovax and neuronal tissue. Id. at 4. Moreover, he stated the
Pneumovax was administered at petitioner’s lower right arm, below her right shoulder, and given
subcutaneously, making it unlikely that the Pneumovax would have penetrated the space of
petitioner’s shoulder girdle. Id. Dr. Axelrod stated hepatitis B vaccine directly damaged
petitioner’s peripheral nerves. Id. at 5.

         On August 4, 2015, respondent filed the expert opinion of Dr. Mehrdad Matloubian, an
immunologist and rheumatologist, stating the rapidity of the occurrence of petitioner’s symptoms
suggested a delayed type of hypersensitivity response to Pneumovax. Ex. A, at 1, 4. He notes
that the multiple imaging studies showed a superficial process limited to the skin and not
involving any of petitioner’s underlying fascia or muscles, concluding there was no evidence of a
subcutaneous abscess or an intramuscular abscess (pyomyositis). Id. at 5. Moreover, Dr.
Matloubian notes petitioner’s skin changes had completely resolved by three weeks post-
vaccination. Id. Dr. Matloubian states, “I am certain the Pneumovax was the culprit.” Id. He
states hepatitis B vaccine was administered intramuscularly and would have been injected into
petitioner’s right deltoid muscle. Id. He also states the Pneumovax, given subcutaneously,
would have been injected after pinching the skin of petitioner’s upper arm and much more
distally to her shoulder where the deltoid muscle is located. Id. Many of petitioner’s doctors
described petitioner’s erythema as being in her right triceps located internally just distal to her
armpit. Id. None of her doctors described any redness on the outside of her arm or on her
shoulder which would be in the deltoid area. Id. Photographs that petitioner filed as Exhibit 13
were consistent with her doctors’ descriptions, showing redness in the inner part of her upper
arm extending into her armpit. Id. None of these photographs showed a lesion on her right
shoulder or deltoid muscle. Id. Dr. Matloubian concludes that the lesion corresponds to the site
of the subcutaneous administration of Pneumovax in petitioner’s right arm and not to the site of
the intramuscular administration of hepatitis B vaccine. Id. He states petitioner had either a
cellulitis or injection site reaction to Pneumovax that she received subcutaneously in her right
arm. Id. at 6. He states that petitioner did not have signs or symptoms of a systemic
inflammatory response, such as fever. Id. at 8. Her symptoms were localized to the arm where
she received Pneumovax. Id.

       On August 10, 2015, the case was transferred to the undersigned.

       On October 29, 2015, the undersigned ordered petitioner to file a report by Dr. Axelrod
responding to Dr. Matloubian’s report by December 4, 2015.

       On December 4, 2015, petitioner moved for a 30-day extension of time to file Dr.

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Axelrod’s responsive report. On December 5, 2015, the undersigned granted petitioner’s motion,
setting February 13, 2016 as the deadline for filing Dr. Axelrod’s responsive report.

        By informal communication with the undersigned’s law clerk on February 8, 2016,
petitioner’s counsel stated he was not going to file a responsive report from Dr. Axelrod.

        On February 11, 2016, petitioner filed a Motion for a Decision Dismissing her Petition,
stating she “recognizes that she will likely be unable to meet her burden of proof and establish
that she is entitled to compensation in the Vaccine Program.” Pet’r’s Mot. ¶ 2. She also states
she “cannot demonstrate that it was more likely the Hepatitis B vaccination that she received on
October 10, 2013, and not the pneumococcal vaccine (a vaccine not covered by the Program) she
received in the same arm” that caused her injury. Id. She further states “to proceed further
would be unreasonable and would waste the resources of the Court, the Respondent, and the
Vaccine Program.” Id. at ¶ 3.

       The undersigned grants petitioner’s motion and dismisses this case for failure to make a
prima facie case of causation in fact.

                                         DISCUSSION

       To satisfy her burden of proving causation in fact, petitioner must prove 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 v. Sec’y
of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion
in Grant v. Secretary of Health and Human Services, 956 F.2d 1144, 1148 (Fed. Cir. 1992):

               A persuasive medical theory is demonstrated by “proof of a logical
               sequence of cause of and effect showing that the vaccination was
               the reason for the injury [,]” the logical sequence being supported
               by a “reputable medical or scientific explanation[,]” i.e., “evidence
               in the form of scientific studies or expert medical testimony[.]”

418 F.3d at 1278.

       Without more, “evidence showing an absence of other causes does not meet petitioners’
affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
association is not sufficient to prove causation in fact. Id. at 1148.

         Petitioner must show not only that but for her hepatitis B vaccination, she would not have
had cellulitis, but also that her hepatitis B vaccination was a substantial factor in causing her
cellulitis. Shyface v. Sec’y of HHS 165 F.3d 1344, 1352 (Fed. Cir. 1999).

       The Vaccine Act does not permit the undersigned to rule for petitioner based on her

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claims alone, “unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-
13(a)(1). In the instant action, petitioner filed an expert report from Dr. Axelrod substantiating
her allegations. But respondent’s expert Dr. Matloubian refuted Dr. Axelrod’s conclusions,
basing his opinion not only on the treating doctors’ opinions, but also on the imaging filed in the
record and his own superior expertise in the subject matter. Given the opportunity to have Dr.
Axelrod rebut Dr. Matloubian’s expert opinion, petitioner did not do so, a tacit admission from
her own expert Dr. Axelrod that he could not refute Dr. Matloubian’s opinion that it was the
Pneumovax, not the hepatitis B vaccine, which caused her arm injury.

      The undersigned GRANTS petitioner’s Motion for a Decision Dismissing her Petition
and DISMISSES this case for petitioner’s failure to make a prima facie case under the Vaccine
Act.

                                            CONCLUSION

      This petition is DISMISSED. In the absence of a motion for review filed pursuant to
RCFC, Appendix B, the clerk of the court is directed to enter judgment herewith. 2


IT IS SO ORDERED.


Dated: February 11, 2016                                                   s/ Laura D. Millman
                                                                            Laura D. Millman
                                                                              Special Master




2
  Pursuant to Vaccine Rule 11(b), entry of judgment can be expedited by each party, either jointly or
separately, filing a notice renouncing the right to seek review.
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