In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS

*********************
CONCEPTION PLEVAK,                    *
                                      *      No. 15-1119V
                   Petitioner,        *      Special Master Christian J. Moran
                                      *
v.                                    *
                                      *      Filed: February 28, 2019
SECRETARY OF HEALTH                   *
AND HUMAN SERVICES,                   *
                                      *
                   Respondent.        *
*********************
Jerome A. Konkel, Samster, Konkel & Safran, S.C., Milwaukee, WI for petitioner;
Lisa A. Watts, United States Dep’t of Justice, Washington, DC, for respondent.

                     DECISION DENYING COMPENSATION1

       Ms. Conception Plevak filed a claim for compensation under the National
Childhood Vaccine Injury Act of 1986 on October 5, 2015. In her petition, she
claimed that influenza vaccinations on October 27, 2012, and October 30, 2013,
caused her to develop dysautonomia. Petition at ¶ 16. Since the beginning of her
case, Ms. Plevak has been represented by Mr. Jerome Konkel. In the years since
the petition was filed, Ms. Plevak worked to develop additional evidence in
support of her claim. However, these efforts were largely unsuccessful. On
February 14, 2019, Ms. Plevak moved to dismiss her petition on the grounds that
“an investigation of the facts and science supporting her case demonstrated to
petitioner that she will be unable to prove that she is entitled to compensation.”

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         Because this ruling contains a reasoned explanation for the action in this case, the
undersigned is required to post it 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). This means the ruling will be
available to anyone with access to the internet. In accordance with Vaccine Rule 18(b),
petitioners have 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will
redact such material before posting the ruling.
Because the undersigned agrees with Ms. Plevak’s assessment that she cannot,
based on the facts of her case, prevail on her claim of a vaccine injury, her motion
is GRANTED and her claim is DISMISSED for insufficient proof pursuant to
Vaccine Rule 8(d).

Factual History

       Respondent’s Rule 4(c) report, filed April 18, 2016, aptly summarizes the
uncontroverted facts of this case. Ms. Plevak was 50 years old at the time she
received a flu vaccination on October 7, 2012. Exhibit 2 at 2. Three weeks after
the October 7 vaccination, Ms. Plevak presented to her primary care physician with
complaints of headache for the prior two weeks. Exhibit 3 at 2-3. Ms. Plevak also
self-reported high blood pressure readings. However, the examination did not
reveal any abnormalities, including a finding of normal blood pressure. Id.

       Ms. Plevak visited the emergency department later that same day,
complaining of a worsening headache. Exhibit 5 at 12. The only abnormal finding
upon examination, which included a head CT scan, was high blood pressure. Id. at
13. Ms. Plevak was discharged shortly after she arrived. Id. at 16. An email from
her treating physician attributed her condition to elevated blood pressure, which
needed to be controlled and closely monitored. Exhibit 3 at 6.

      Additional tests in the following weeks returned normal results. Exhibit 4 at
43, 45-46. She was ultimately prescribed medication for high blood pressure and
was not seen again for months. Id.

       At her next visit with a physician, which was a non-urgent wellness
examination, Ms. Plevak reported that she had been suffering from fatigue,
moodiness, and sadness over the course of the previous several weeks. Exhibit 4 at
24. Her tests results were normal aside from a finding of high cholesterol and she
was prescribed an anti-depressant. Id. at 22-24. The anti-depressant had positive
results. Id. at 41.

       Ms. Plevak was administered another annual flu shot on October 30, 2013.
Exhibit 2 at 1. Two weeks after the vaccination, she was admitted to the hospital
for high blood pressure and headaches. Exhibit 7 at 2-151. It was noted that she
was not taking blood pressure medication at that time. Id. at 13. Multiple tests
again returned normal results and she was discharged with prescriptions for her
high blood pressure and headaches. Id. at 18-20.


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       Ms. Plevak returned to the emergency department two months later, on
December 30, 2013. At that visit, she presented with fluctuating blood pressure,
headache, neck pain, swelling, and dizziness. Exhibit 9 at 2-37. Again, Ms.
Plevak had an unremarkable examination aside from high blood pressure and was
released shortly after she arrived. Id. at 3.

       Ms. Plevak had multiple visits with Dr. Rose Dotson in 2014. Exhibit 10 at
2-59. Dr. Dotson diagnosed Ms. Plevak with, among other things, mild
dysautonomia that did not appear congruent with Ms. Plevak’s symptoms. Id. Dr.
Dotson also appeared to suggest that the dysautonomia she did experience may be
attributable to her medication. Id. Dr. Dotson suggested that Ms. Plevak continue
with her current medication regimen and seek additional treatment for her
hypertension. Id. at 58.

Procedural History

       Ms. Plevak filed her petition for compensation on October 5, 2015. On
March 3, 2016, petitioner filed a statement confirming that the documentary record
was sufficiently complete for the Secretary’s review of the case. The Secretary
then provided his position, stating that Ms. Plevak was not entitled to
compensation under the Act. Resp’t’s Rep., filed Apr. 18, 2016, at 6-8. In his
report, the Secretary noted that Ms. Plevak’s treating physicians associated any
dysautonomia symptoms she did have to causes other than the vaccination and that
there was no medical opinion in the record that associated her dysautonomia to
vaccination. Id. at 7.

       During the Rule 5 status conference, petitioner stated that she had retained
an expert neurologist and would be filing an expert report associating her condition
to the vaccinations. Order, issued Apr. 27, 2016. Multiple enlargements of time
were requested and granted for the filing of the expert report and petitioner
ultimately filed the report, by Dr. David Axelrod, on October 25, 2016. See
exhibit 16. Dr. Axelrod’s report started off by stating that he was not an expert in
dysautonomia and that he was assuming that Ms. Plevak suffered from
dysautonomia and that the dysautonomia started after her the first vaccination and
then relapsed shortly after the second. Id. at 1. Dr. Axelrod then continued to
opine that studies had associated dysautonomia to vaccination and that, as a result,
he could conclude that, more likely than not, Ms. Plevak’s dysautonomia was the
result of her vaccinations.



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       The Secretary filed a rebuttal report from Dr. Daniel Feinberg, also after
multiple enlargements of time, on March 10, 2017. See exhibit A. In his report,
Dr. Feinberg opined that Dr. Axelrod’s report was incorrect in its conclusion since
there was no scientific basis for the premise that dysautonomia was causally
related to influenza vaccination. Id. at 4. Furthermore, Dr. Feinberg noted that Dr.
Dotson’s assessment of Ms. Plevak was not consistent with a conclusion that she
suffered from anything more than hypertension and thus, Dr. Axelrod’s assumption
that she suffered from dysautonomia was in error. Id.

       Because of the latent ambiguity in Dr. Dotson’s records and the importance
these records appeared to play in both experts’ reports, the undersigned encouraged
Ms. Plevak to contact Dr. Dotson to seek clarification regarding her evaluation of
Ms. Plevak’s putative dysautonomia. Order, issued June 15, 2017. In status
reports filed on August 14, 2017, and August 28, 2017, petitioner reported having
difficulty obtaining cooperation from Dr. Dotson. Petitioner stated that she
considered issuing a subpoena for Dr. Dotson’s testimony, but noted that
Wisconsin law created privileges that treating physicians could use to avoid
compelled testimony.

      In a status conference held on September 7, 2017, petitioner reported that,
considering the difficulty she had obtaining cooperation from Dr. Dotson, she had
begun the process of obtaining the cooperation of a consulting neurologist that
could provide an expert report on Ms. Plevak’s diagnosis. Order, issued Sept. 7,
2017.

       In a status report filed on October 10, 2017, petitioner stated that she had
retained Dr. Paul Nausieda to examine Ms. Plevak and provide an expert opinion
on her condition. However, during a status conference held on January 4, 2018,
Ms. Plevak reported that she decided to not proceed with Dr. Nausieda for
financial reasons and that she had consulted with another expert witness that
suspected Ms. Plevak suffered from antiphospholipid syndrome. Petitioner stated
that 12 weeks was needed to perform additional testing to confirm the diagnosis.

       Three months later, petitioner filed a status report stating that Ms. Plevak’s
new neurologist, Dr. Chelimsky, now had a working diagnosis of vagus nerve
dysautonomia. Pet’r’s Rep., filed Apr. 1, 2018. Ms. Plevak’s status report further
communicated that her attorney had made several attempts to contact Dr. Chelimsky
to obtain his opinion on whether Ms. Plevak suffered from dysautonomia. However,
these efforts had so far been unsuccessful. Ms. Plevak requested an additional 30-


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60 days to obtain the report informally before considering whether it would be
appropriate to compel his testimony by subpoena.

       Throughout the spring and fall of 2018, Ms. Plevak continued to report that
she had no success getting Dr. Chelimsky to cooperate with her attorney. See
generally ECF nos. 54-58. Based on the representations made by Ms. Plevak’s
attorney, his efforts to contact Dr. Chelimsky and his reticence to subpoena his
testimony appeared reasonable. Ultimately, on October 18, 2018, Ms. Plevak moved
for an award of interim fees and costs and on the next day Mr. Konkel moved to
withdraw as counsel, citing “a disagreement as to the further handling of the course
of the pending petition.” Pet’r’s Mot., filed Oct. 19, 2018, at 1. The undersigned
ordered additional briefing on the issue of fees and costs and after supplemental
briefs were issued, awarded petitioner the vast majority of her requested total.
Decision, issued Jan. 28, 2019, 2019 WL ____.

       However, the undersigned held concerns about Mr. Konkel’s withdrawal from
the case given its procedural posture and the appearance that Ms. Plevak was
interested in continuing the petition. Accordingly, a status conference was held on
February 14, 2019, to discuss Mr. Konkel’s withdrawal and the next steps for Ms.
Plevak. During the status conference, petitioner communicated that she had finally
obtained some information from Dr. Chelimsky, but that it was unhelpful to her case.
Furthermore, petitioner stated that she had sought out a second opinion from another
attorney who agreed with Mr. Konkel’s assessment that a dismissal was appropriate.
Based on these representations, Ms. Plevak decided to no longer pursue her case.
Shortly after the status conference, she moved for a decision dismissing the petition.

Analysis

      Petitioners are required to establish their cases by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence
standard requires a “trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the judge of the fact’s existence.” Moberly v. Sec’y of
Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted).

       The facts of Ms. Plevak’s case do not allow the undersigned to find that the
evidence preponderates in favor of Ms. Plevak’s claim that her vaccinations caused
her to develop dysautonomia or any related conditions. Ms. Plevak’s own treating
physicians expressed substantial uncertainty about the nature of Ms. Plevak’s
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disorder, with most appearing to ascribe it to hypertension, not an underlying
neurological disorder. Furthermore, Ms. Plevak has failed to provide persuasive
evidence supporting her claim that flu vaccinations can cause dysautonomia and,
more importantly, that it did cause her putative dysautonomia.

Conclusion

       While the undersigned held concerns that Ms. Plevak may have left stones
unturned through the years of her petition due to the non-cooperation by her
treating physicians, Ms. Plevak’s most recent representations indicate that those
physicians, or at least some of them, were finally cooperative. Unfortunately, they
were unable to provide answers that advanced Ms. Plevak’s claim of a vaccine
injury. Furthermore, assessments by independent attorneys indicated to Ms.
Plevak that Mr. Konkel had been diligent and competent in his efforts to prosecute
her case.

       For the aforementioned reasons, the undersigned finds that Ms. Plevak has
been provided a full and fair opportunity to present her case of a vaccine injury.
The evidence entered by Ms. Plevak is not sufficient to meet her statutory burden
for proving a compensable vaccine injury. Accordingly, Ms. Plevak’s petition is
DISMISSED pursuant to Vaccine Rule 8(d).


      IT IS SO ORDERED.
                                             s/Christian J. Moran
                                             Christian J. Moran
                                             Special Master




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