             In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                        No. 10-739V
                                   Filed: March 20, 2014

* * * * * * * * * * * * * * *                                UNPUBLISHED
LORETTA FLOYD,                *
                              *                              Special Master Dorsey
          Petitioner,         *
                              *
v.                            *                              Dismissal Decision; Failure to
                              *                              Produce Expert Reports; Order to
SECRETARY OF HEALTH           *                              Show Cause; Measles-Mumps-
AND HUMAN SERVICES,           *                              Rubella (MMR) Vaccine;
                              *                              Neurologic, rheumatologic, and
          Respondent.         *                              gastrointestinal injuries.
* * * * * * * * * * * * * * *

Richard Gage, Richard Gage, P.C., Cheyenne, WY, counsel for petitioner.
Alexis B. Babcock, United States Dept. of Justice, Washington, D.C., counsel for respondent.

                                           DECISION1

         On October 29, 2010, Ms. Floyd (petitioner) filed a petition, pro se, pursuant to the
National Vaccine Injury Compensation Program.2 Ms. Floyd alleged that she suffered from
neurologic, rheumatologic, and gastrointestinal injuries as a result of a measles, mumps, rubella
(“MMR”) vaccination she received on October 10, 2007. Petition (“Pet.”) at Preamble. 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.



1
  Because this unpublished decision contains a reasoned explanation for the action in this case,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 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 (2006)). In accordance with
Vaccine Rule 18(b), a party has 14 days to identify and move to redact 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,
the undersigned agrees that the identified material fits within the requirements of that provision,
such material will be redacted from public access.
2
  The National Vaccine Injury Compensation 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 amended,
42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.
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I.     Factual Background

      A detailed summary of the facts of this case is set forth in Respondent’s Rule 4 report
which was filed on August 10, 2011. A brief recitation of the relevant facts, as provided in the
medical records, is set forth below.

        Ms. Floyd was born on July 4, 1962. Petitioner’s Exhibit (“Pet. Ex.”) 12A at 2. Her
medical history included a diagnosis of Graves’ disease and treatment for shoulder pain and
carpal tunnel syndrome. Id. at 3; Pet. Ex. 12C at 15-17. Ms. Floyd also reported a history of
sarcoidosis and lupus. Pet. Ex. 12B at 1.

         On September 6, 2007, and on October 10, 2007, Ms. Floyd received an measles-mumps-
rubella (MMR) vaccine prior to attending graduate school at Washington State University
(“WSU”). Pet. Ex. 12A at 5-6. The first set of medical records that were filed after the October
10, 2007 vaccination are dated May 7, 2008, nearly seven months later. At this visit, Ms. Floyd
was evaluated at WSU Health and Wellness where she reported complaints of a “scratchy throat,
trouble breathing and inability to sleep in her apartment” due to a mite infestation. Pet. Ex. 12B
at 10. Ms. Floyd was advised to talk to her apartment owner about fumigating her apartment or
to call the county if she needed suggestions on how to best fumigate. Id.

        The next contemporaneously dated medical records are dated July 10, 2008, where Ms.
Floyd returned to WSU for a follow up on her thyroid as well as for problems with insomnia,
pressure behind her eyes and a headache. Pet. Ex. 12B at 9. Dr. Martha Hunt noted that Ms.
Floyd had “a slight prominence of her eyes” and a “slightly enlarged thyroid”, but no nodules or
point tenderness was noted over her sinuses. Id. The assessment included hyperthyroidism
which was being treated with Propothyrouracil. Id. Ms. Floyd was also diagnosed with
insomnia. Id.

        In July 2008, Ms. Floyd returned to WSU several times for treatment of her allergies and
for a follow up of her hyperthyroidism. Pet. Ex. 12B at 7. On September 8, 2008, Ms. Floyd
presented to Dr. Linda Fearn, an internal medicine specialist, and expressed concerns about her
insomnia, allergy problems and sensitivity to sunlight. Pet. Ex. 12B at 1-3. Ms. Floyd also
expressed her concern that she may have lupus and requested diagnostic testing. Id. Upon
examination, Ms. Floyd was noted to have mild proptosis3, a mildly injected conjunctiva, and a
significantly enlarged thyroid. Id. Dr. Fearn suspected that Ms. Floyd had Graves’ Disease. Id.

       On September 16, 2008, Ms. Floyd was evaluated by Dr. Steven Cox at WSU who felt
that Ms. Floyd had numerous “somatic concerns” that did not “jive well with her clinical
findings or laboratory findings.” Pet. Ex. 12A at 15. Dr. Cox diagnosed Ms. Floyd with
hyperthyroidism and a somatization disorder and recommended that she undergo a psychiatric
evaluation. Id.

       Three days later, on September 19, 2008, Ms. Floyd returned to see Dr. Fearn and

3
  Proptosis is defined as “exophthalmos” or an “abnormal protrusion of the eyeball.” Dorland’s
Illustrated Medical Dictionary, 32nd Edition (“Dorland’s”) at 660, 1528.
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reported numerous complaints including photosensitivity, sores on her mouth, and shortness of
breath when walking. Pet. Ex. 12A at 12-14. On examination, Dr. Fearn noted that Ms. Floyd
was “a healthy appearing woman who is wearing four pairs of glasses… Exam today is limited to
her neck, which is without masses, although I did not exam her thyroid today.” Id. at 13. Dr.
Fearn’s assessment included hyperthyroidism, suspected Graves’ disease, and a probable
somatization disorder. Id. Ms. Floyd declined a psychiatric referral. Id.

       On October 29, 2008, Ms. Floyd saw Dr. John Baldwin, a rheumatologist, for her
ongoing symptoms of sleep difficulties, fatigue, and photosensitivity. Pet. Ex. 14 at 4. Ms.
Floyd also reported her concern that she may have lupus because she had been reading about
lupus on the internet and was convinced that she had the disease, supported by the fact that her
grandmother had lupus. Id. Dr. Baldwin did not recommend any treatment or disability
accommodations and felt that Ms. Floyd’s primary care physicians could adequately manage her
photosensitivity problems. Id. at 5.

        From December 2008 through April 2009, Ms. Floyd continued to see her physicians and
also had an evaluation from a neurologist, all attempting to diagnose and treat Ms. Floyd’s
various symptoms. Pet. Exs. 15, 16A. In February 2009, Dr. Morgan observed that all of the
results of Ms. Floyd’s laboratory testing were normal with the exception of an increased T2
signal on her MRI. Pet. Ex. 15 at 14. Dr. Morgan recommended an echocardiogram and a sleep
deprived EEG due to Ms. Floyd’s statement that she had a previous history of febrile seizures.
Id. at 14-15.

       On April 8, 2009, Ms. Floyd saw Dr. Richard Emtman at Pullman Family Medicine for
multiple problems. Pet. Ex. 16A at 16-18. Dr. Emtman confirmed that Ms. Floyd’s thyroid tests
came back normal and that she was not anemic and had no findings of hyperchromic indices. Id.
Dr. Emtman also reviewed Dr. Morgan’s findings that Ms. Floyd’s rheumatoid test was negative.
Id. During this visit, Ms. Floyd requested that Dr. Emtman sign a letter that Ms. Floyd drafted
requesting that Ms. Floyd receive accommodations from WSC, which Dr. Emtman refused to
sign. Pet. Exh. 16A at 16-18.

        Ms. Floyd returned to Dr. Morgan on April 14, 2009. Pet. Ex. 15 at 25-26. Aside from
migraines, Dr. Morgan did not feel that Ms. Floyd had any underlying neurological conditions.
Id. at 26. Dr. Morgan stated that she could not state whether Ms. Floyd had any underlying
psychiatric conditions, because she was not qualified to make such a diagnosis, but observed that
Ms. Floyd had a lot of anxiety, which resulted in her reading “a lot of things on the internet that
cause her to feel that she has many other conditions that she probably does not have.” Id.

        On April 28, 2009, Ms. Floyd returned to see Dr. Emtman. Pet. Ex. 16A at 21, 24-25.
Following an examination, Dr. Emtman noted that he would encourage Ms. Floyd to seek out a
Behavioral Health Specialist or “she will continue to seek out health care providers which will
help legitimize her numerous concerns.” Id.

        On July 13, 2009, Ms. Floyd was evaluated by Dr. Robert Baughman, a sarcoidosis
specialist. Pet. Ex. 20 at 1-4. Ms. Floyd informed Dr. Baughman that her “current set of
problems” began in September 2007, shortly after her first set of MMR vaccinations. Id. Dr.

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Baughman also noted that Ms. Floyd diagnosed herself with lupus, although her lupus screening
test results were negative. Id. Ms. Floyd also gave a history of food intolerance and diabetes.
Dr. Baughman stated in his report that his examination of Ms. Floyd was essentially
unremarkable and that Ms. Floyd probably did not have sarcoidosis, although he did note that it
was a diagnosis of exclusion. Id. Dr. Baughman ordered a number of additional tests for Ms.
Floyd, but told her that at this time, she did not have any specific features that confirmed or
denied the diagnosis of sarcoidosis. Id.

         On August 21, 2009, Ms. Floyd underwent a dermatologic consultation with Dr. Robert
Palacio. Pet. Exh. 22 at 1-9. On the intake questionnaire, Ms. Floyd checked approximately
90% of the items in a screening “list of current problems,” including fever, sweats, unintentional
weight loss, keloid, loss of balance, headaches, seizures, paralysis, shortness of breath, wheezing,
atrial fibrillation, edema, and chest pain. Id. at 8.

       On August 27, 2009, Ms. Floyd was evaluated by an ophthalmologist, Dr. Ronald
Warwar, who detailed numerous tests relating to Ms. Floyd’s possible diagnosis of sarcoidosis.
Pet. Ex. 25 at 1. A fine needle aspiration of Ms. Floyd’s parotid gland was essential non-
diagnostic with no atypical cells found. Id. Dr. Warwar stated that Ms. Floyd’s findings could
be consistent with Sjogren’s disease. Id.

       In 2009, Ms. Floyd applied for social security disability benefits. Pet. Ex. 27. An
appointment was scheduled with Dr. Len McCoy, a psychiatrist on September 14, 2009. Id.
There are no other records filed regarding this disability claim.

II.    Procedural Background

        This case was initially assigned to Special Master Moran who ordered petitioner to file
medical records by March 3, 2011. Ms. Floyd filed medical records on March 10, 2011, May 5,
2011, and May 12, 2011. On August 10, 2011, respondent filed a report pursuant to Vaccine
Rule 4(c) stating that petitioner had not demonstrated an entitlement to compensation under the
Vaccine Act. On May 13, 2012, Ms. Floyd filed a detailed, written response to the Rule 4 report.
She filed additional attachments to her response on July 30, 2012.

        On October 31, 2012, Ms. Floyd filed a motion for enlargement of time to file additional
evidence in support of her case. On November 5, 2012, respondent filed an opposition to
petitioner’s motion and requested that the special master set firm deadlines for the submission of
evidentiary submissions in this case.

        On January 3, 2013, Special Master Moran issued an order for Ms. Floyd to file a
response to respondent’s response and respondent’s request that evidentiary deadlines be set in
this case. The case was transferred to the undersigned on January 15, 2013.

        On February 4, 2013, Ms. Floyd filed a motion for an enlargement of time seeking 60
days to seek an expert witness and/or an attorney. A status conference was scheduled for May
14, 2013, with Ms. Floyd to discuss her motion and to discuss procedures for moving forward
with her case.

                                                 4
        On May 14, 2013, a status conference was held where Ms. Floyd stated that she had
retained an attorney to represent her. A deadline was set for June 17, 2013, to have her attorney
enter an appearance in this case.

        On June 16, 2013, Mr. Richard Gage entered an appearance on behalf of petitioner. A
status conference was held on July 25, 2013, where the undersigned informed petitioner’s
counsel that an expert report would be required in order for Ms. Floyd to proceed with her claim.
A deadline was set for August 26, 2013, for petitioner to file an expert report.

        On August 26, 2013, petitioner filed an expert report prepared by Dr. Vera Byers who
opined, after a review of the records filed in this case, that Ms. Floyd has “no identifiable
autoimmune disease which could be triggered by a number of agents including vaccinations or
infections … As a result, [Dr. Byers] could not come to an opinion to a reasonable degree of
probability that any of [Ms. Floyd’s] reported signs or symptoms resulted from the MMR
vaccinations she received in 2007.” Pet. Ex. 103 at 2.

        On September 16, 2013, Ms. Floyd, through her counsel, filed a motion to exclude the
“testimony”, i.e., the report of Dr. Byers. In support of her motion, Ms. Floyd took issue with
the fact that Dr. Byers referred to her as a “lady,” that Dr. Byers relied on records of only three
of Ms. Floyd’s physicians for the basis of her expert opinion, that Dr. Byers erroneously relied
on statements from Dr. Emtman, and that Dr. Byers “refused to acknowledge any doctor reports
of conditions known to be associated with lupus, particularly with African-Americans.” Ms.
Floyd also requested 90 days to have her case reviewed by the Washington Bureau of the
NAACP. On September 20, 2013, respondent filed a response to the motion, opposing both of
petitioner’s requests and renewing respondent’s request that the case be dismissed. On October
28, 2013, the undersigned denied petitioner’s motion to exclude Dr. Byers’ expert report.

        The undersigned issued an Order to Show Cause on November 5, 2013, ordering Ms.
Floyd to file an expert report or other competent proof in support of her claim. On February 3,
2014, Ms. Floyd filed a letter addressed to the NAACP requesting the NAACP’s legal assistance
to “protect her rights under the Civil Rights, Vaccine Injury Compensation & Disability Acts.”
Pet. Ex. 105 at 1. Ms. Floyd’s letter reiterated many of the arguments set forth in her September
16, 2013 motion to exclude the testimony of Dr. Byers. The letter did not include an expert
opinion in support of her claim as ordered in the November 5, 2013 Show Cause Order. On
February 6, 2014, Ms. Floyd’s attorney, Richard Gage, filed a motion to withdraw from the case
stating that Ms. Floyd was seeking other counsel to represent her in this case. To date, Ms.
Floyd has failed to file an expert report or other competent proof in support of her claim as
ordered on November 5, 2013.

III.   Requirement for an Expert Report or Supportive Medical Records

       Petitioner bears the burden of proving a prima facie case by a preponderance of the
evidence. See 42 U.S.C. § 300aa-13(a)(1)(A); see also Moberly v. Sec’y of Health & Human
Services, 592 F.3d 1315, 1320 (Fed. Cir. 2010). To prove causation, petitioner must “show by
preponderant evidence that the vaccination brought about [the] injury by providing: (1) a medical

                                                 5
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.” Moberly, 592 F.3d at 1322 (citing
Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005).

        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 a petitioner’s
claims alone. Rather, the petition must be supported by either medical records or by the opinion
of a competent physician. See 42 § 300aa-13(a)(1). In this case, because the medical records do
not support petitioner’s claim, a medical opinion must be offered in support.

        Petitioner has not offered a supportive expert report in support of her claim. To the
contrary, the opinion by the expert offered by petitioner states that the expert could not come to
an opinion to a reasonable degree of probability that any of Ms. Floyd’s reported signs or
symptoms resulted from the MMR vaccinations she received in 2007. In addition, none of Ms.
Floyd’s treating physicians attribute any of her conditions to her MMR vaccination. There is
also no evidence in the record of appropriate temporal relationship between Ms. Floyd’s
vaccination(s) and the onset of her injuries.

IV.    Conclusion

        Therefore, Ms. Floyd’s petition is hereby DENIED. Thus, this case is dismissed for
insufficient proof. In the absence of a motion for review, the Clerk is directed to enter judgment
accordingly.

       IT IS SO ORDERED.

                                               Nora Beth Dorsey
                                               Nora Beth Dorsey
                                               Special Master




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