  In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                  (Filed: November 7, 2014)

* * * * * * * * * * * * * *                 *
STEPHANIE VINO FIGUEROA,                    *     UNPUBLISHED
as personal representative of the estate of *
MANNY FIGUEROA, deceased,                   *
                                            *     No. 10-750V
             Petitioner,                    *
                                            *     Special Master Hamilton-Fieldman
v.                                          *
                                            *     Fact Ruling; Sufficiency of Evidence;
SECRETARY OF HEALTH                         *     Receipt of Vaccination; Influenza (“flu”)
AND HUMAN SERVICES,                         *     Vaccine; Guillain-Barré Syndrome (“GBS”)
                                            *
             Respondent.                    *
* * * * * * * * * * * * * * *
Michael Benjamin Feiler, Feiler & Leach, PL, Coral Gables, FL, for Petitioner.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for Respondent.

                        RULING REGARDING FINDING OF FACT 1

       I.      Introduction

      On November 1, 2010, Stephanie Vino Figueroa (“Petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program 2 (“the Program”) on

       1
          Because this ruling contains a reasoned explanation for the special master’s action in
this case, the special master intends to post it on the website of the United States Court of
Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116
Stat. 2899, 2913 (Dec. 17, 2002). All decisions and substantive rulings of the special masters
will be made available to the public unless they contain trade secret or commercial or financial
information that is privileged and confidential, or medical or similar information whose
disclosure would clearly be an unwarranted invasion of privacy. When such a decision or
designated substantive order is filed, a party has 14 days to identify and to move to redact such
information before the document’s disclosure. Absent a timely motion, the decision shall be
made available to the public in its entirety. Upon the filing of a timely motion to redact, along
with a proposed redacted version of the decision, 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 the ruling made available to the public. 42 U.S.C. § 300aa-12(d)(4); Vaccine Rule
18(b).
        2
          The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986,
42 U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual
section references will be to 42 U.S.C. § 300aa of the Act.
behalf of her deceased husband, Manny Figueroa. Petitioner alleges that a trivalent influenza
(“flu”) vaccination that Mr. Figueroa received on October 21, 2008 caused him to develop
Guillain-Barré syndrome (“GBS”). See Petition (“Pet.”) at 1. In her report filed pursuant to
Vaccine Rule 4(c), Respondent argued that “petitioner has failed to demonstrate with reliable
evidence that Mr. Figueroa received a flu vaccine on or about October 21, 2008.” Respondent’s
Rule 4 Report (“Resp’t’s Rep’t”), filed July 9, 2014, at 14.

        Because nothing in the record directly documents the administration of a flu vaccine to
Mr. Figueroa in October of 2008, Petitioner filed a motion for a finding that he received the
vaccine. Petitioner’s Motion for Finding of Fact Re: Vaccine (“Motion”), filed Sept. 8, 2014.
Petitioner acknowledges that there is no contemporaneous record of vaccination, but argues that
there is sufficient circumstantial evidence in the record to support a finding that the vaccination
took place during the time frame alleged. Id. at 1. In support of this argument, Petitioner has
filed proposed Findings of Fact as well as declarations from Petitioner and from Ray George
Bailey, a witness to the alleged vaccination. See id.

       In her Response to Petitioner’s Motion, Respondent defers to the undersigned regarding
“whether preponderant evidence exists to support a finding that Mr. Figueroa received a flu
vaccine in late October 2008,” but argues that “there is no evidence to support a vaccination date
of October 21, 2008.” Response to Petitioner’s Motion for Ruling that Mr. Figueroa Received a
Covered Vaccine (“Response”), filed September 11, 2014, at 2.

       The matter is now ripe for adjudication. Upon consideration of the record as a whole, the
undersigned finds that a preponderance of the evidence supports a finding that Mr. Figueroa
received an influenza vaccination between October 22nd and November 1st, 2008. 3

       II.      Summary of the Evidence

        The undersigned has considered the entirety of the record. § 300aa-13(a)(1). See Paterek
v. Sec’y of Health & Human Servs., 527 Fed. App’x 875, 884 (Fed. Cir. 2013) (stating that
“[f]inding certain information not relevant does not lead to—and likely undermines—the
conclusion that it was not considered”); see also Veryzer v. Sec’y of Health & Human Servs., 98
Fed. Cl. 214, 223 (2011) (noting that special masters are bound by both § 300aa-13(b)(1) and
Vaccine Rule 8(b)(1) to consider only evidence that is both “relevant” and “reliable”). The
evidence includes (1) Mr. Figueroa’s medical records; (2) Petitioner’s declaration; and (3) Ray
George Bailey’s declaration. These sources of evidence are discussed in turn.

             A. Mr. Figueroa’s medical records

       As is explained in the declarations filed on behalf of Petitioner and of Dr. Bailey, Mr.
Figueroa’s flu vaccine was allegedly administered during an exercise class, outside the context of
a medical setting. Accordingly, no existing medical records document administration of the

       3
          The undersigned will not identify an exact vaccination date at this time. If the date of
vaccination becomes a pivotal issue as the case proceeds, the undersigned will made additional
findings.
                                                 2
vaccine. The first documented medical appointment after the alleged vaccination was on
November 10, 2008, when Mr. Figueroa presented to Dr. Jorge Fleites, his primary care
physician, complaining of difficulty swallowing and facial paralysis. Petitioner’s Exhibit (“Pet.
Ex.”) 2 at 244. However, there is no mention of the vaccination during this visit.

        On the same day as his appointment with Dr. Fleites, November 10, 2008, Mr. Figueroa
presented to the Baptist Hospital emergency room with complaints of facial weakness and was
admitted. Pet. Ex. 1 at 44-45. The first clear reference to vaccination is documented in a
handwritten neurology progress report, dated November 11, 2008, while he was hospitalized. Id.
at 77. According to the progress report, Mr. Figueroa received a flu shot “2 weeks ago.” Id. A
similar note appears the next day, on November 12, 2008, following Mr. Figueroa’s infectious
disease consult with Dr. H. Barry Baker. Id. at 65. During the consult, Mr. Figueroa was noted
to have had a flu shot “about two weeks ago.” Id. Upon discharge from Baptist Hospital on
November 12, 2008, Mr. Figueroa was again noted to have had a flu shot “2 weeks ago.” Id. at
49.

       Following his release from Baptist Hospital, Mr. Figueroa was treated by neurologist
Ashok Verma, who, on November 17, 2008, noted that Mr. Figueroa received a flu shot “[t]hree
weeks ago.” Pet. Ex. 3 at 337. Immediately after his first appointment with Dr. Verma, on
November 17, 2008, Mr. Figueroa was admitted to Jackson Memorial Hospital (“JMH”) to
undergo IVIG therapy. Pet. Ex. 9 at 430. According to the November 18, 2008 and November
19, 2008 progress notes from JMH, Mr. Figueroa was noted to have “had flu vaccination
approximately 3 weeks ago, and he began bifacial weakness 10 days ago.” Id. at 436, 525. The
November 22, 2008 JMH discharge summary also noted that Mr. Figueroa “received flu
vaccination approximately 3 weeks ago.” Id. at 428.

        At a follow-up visit with Dr. Verma on December 10, 2008, Dr. Verma again noted that
Mr. Figueroa had “received a flu shot about 7 weeks ago.” Pet. Ex. 3 at 335. At a subsequent
follow-up on January 21, 2009, Dr. Verma appears to have erroneously noted that Mr. Figueroa’s
“acute neuropathic deficit,” which occurred in November 2008, was preceeded by “cold and flu
–like symptoms” a few weeks prior. Pet. Ex. 3 at 334. Dr. Verma appears to have crossed out
the “cold and flu-like symptoms” language and replaced it with the term “flu shot,” as noted in a
copy of the actual record, below:




Id.




                                                3
       The last documented visit with Dr. Verma occurred on May 22, 2009. Pet. Ex. 3 at 333.
Dr. Verma again noted that Mr. Figueroa “had had a flu shot 2 weeks before the onset of his
neuropathic deficit.” Id.

              B. Declaration of Ray George Bailey, M.D.

         In his declaration, Dr. Bailey states that Mr. Figueroa’s physician, Dr. Jose Delgado, was
a close friend of his and of Mr. Figueroa’s, and that Dr. Delgado and Mr. Figueroa attended
spinning classes together. Dr. Bailey’s Declaration (“Decl.”) at 1. “In approximately late
October of 2008, Dr. Delgado, at Mr. Figueroa’s request, brought a flu shot with him to spinning
class and gave him the flu shot before class.” Id. “It was shortly thereafter that Mr. Figueroa fell
ill, exhibiting odd neurological symptoms, which as I understand turned out to be Miller Fisher
syndrome.” Id.

              C. Petitioner’s Declaration, dated September 23, 2014 4

         Petitioner’s affidavit looks almost identical to Dr. Bailey’s affidavit. Petitioner states
that, “[i]n approximately late October of 2008,” she recalls Mr. Figueroa telling her that “Dr.
Delgado, at Mr. Figueroa’s request, brought a flu shot with him to spinning class and gave him
the flu shot before class.” Petitioner’s Decl. at 1. “It was shortly thereafter that Mr. Figueroa fell
ill, exhibiting odd neurological symptoms, which as I understand turned out to be Miller Fisher
syndrome.” Id. at 1-2.

       III.      Applicable Legal Standards

       Under the Vaccine Act, Petitioner must first prove by a preponderance of the evidence
that Mr. Figueroa “received a vaccine set forth in the Vaccine Injury Table.” § 300aa-
11(c)(1)(A). The preponderance of the evidence standard means a fact is more likely than not.
Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010).

        Vaccine Rule 2(c)(2)(A) requires petitioners to file “all available medical records
supporting the allegations in the petition, including physician and hospital records relating to …
the vaccination itself.” “If the required medical records are not submitted, the petitioner must
include an affidavit detailing the efforts made to obtain such records and the reasons for their
unavailability.” Vaccine Rule 2(c)(2)(B)(i). Furthermore, if a petitioner’s claim “does not rely
on medical records alone but is also based in any part on the observations or testimony of any
person, the petitioner should include the substance of each person’s proposed testimony in a
detailed affidavit(s) supporting all elements of the allegations made in the petition.” Vaccine
Rule 2(c)(2)(B)(ii).

       Thus, although contemporaneous documentation of vaccination from a health care
provider is the best evidence of vaccine administration, its production is not an absolute

       4
         In fact, no date appears next to Ms. Figueroa’s signature. The undersigned will assume,
for the purposes of this ruling, that the declaration was signed on the day that it was filed.


                                                  4
requirement. See Centmehaiey v. Sec’y of Health & Human Servs., 32 Fed. Cl. 612, 621 (1995)
(“The lack of contemporaneous, documentary proof of a vaccination . . . does not necessarily bar
recovery.”). Indeed, special masters have found in favor of vaccine administration where
contemporaneous documentation of vaccination is unavailable as long as other forms of evidence
have provided preponderant evidence of vaccination administration. For example, corroborative,
though retrospective, medical notations have been found to provide preponderant evidence of
vaccine administration. See Wonish v. Sec’y of Health & Human Servs., No. 90-667V, 1991
WL 83959, at *4 (Fed. Cl. Spec. Mstr. May 6, 1991); Groht v. Sec’y of Health & Human Servs.,
No. 00-287V, 2006 WL 3342222, at *2 (Fed. Cl. Spec. Mstr. Oct. 30, 2006) (finding a treating
physician’s note “4/30/97-Hep B. inj. # 1 (not given here) ([patient] wanted this to be charted)”
to be sufficient proof of vaccination); Lamberti v. Sec’y of Health & Human Servs., No. 99-
507V, 2007 WL 1772058, at *7 (Fed. Cl. Spec. Mstr. May 31, 2007) (finding multiple medical
record references to vaccine receipt to constitute preponderant evidence of administration).

       IV.     Evaluation of the Evidence

       The undersigned has considered the entire record. § 300aa-13(a)(1). Although there is
no contemporaneous documentation of a flu vaccination, subsequent medical records
consistently report that a flu vaccination was administered to Mr. Figueroa between October 22,
2008 and Saturday, November 1, 2008.

        The first clear reference to a vaccination date was recorded on November 11, 2008, two
to three weeks after the alleged vaccination date, as part of a handwritten neurology progress
report at Baptist Hospital. Pet. Ex. 1 at 77 (reporting vaccination “2 weeks ago”). According to
this report, the vaccination date was approximately October 28, 2008. The undersigned finds
that this record constitutes trustworthy evidence, as it documents a report Mr. Figueroa made to a
health care professional for the purpose of facilitating diagnosis and treatment of his condition.
See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (holding
that contemporaneous records “warrant consideration as trustworthy evidence” because the
information from the patient is related to the treaters to facilitate diagnosis and treatment, and
with proper treatment hanging in the balance, accuracy has an extra premium.”); Beckner v.
Sec’y of Health & Human Servs., No. 11-668V, 2013 WL 3353993, at *7 (Fed. Cl. Spec. Mstr.
April 25, 2013) (making a finding regarding a date of vaccination based on a similar
assessment). The undersigned also finds that this report was made close enough to the alleged
date of vaccination that misremembering is unlikely. See id.

        None of the other medical records filed by Petitioner contradict the vaccination date
referenced in the November 11, 2008 report, and they all place the date of vaccination within a
week of October 28, 2008. The declarations filed on behalf of Petitioner and Dr. Bailey are
similarly corroborative.

       V.      Conclusion

      In accordance with the foregoing, the undersigned finds that Petitioner has provided
preponderant evidence that Mr. Figueroa received a flu vaccine between October 22nd and
November 1st, 2008. A status conference will be scheduled to discuss further proceedings.

                                                5
IT IS SO ORDERED.

                    s/ Lisa Hamilton-Fieldman
                    Lisa Hamilton-Fieldman
                    Special Master




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