In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 13-562V

January 20, 2015

Not to be Published

******************************************

ISHWAR GOPICHAND and PENNY *

GOPICHAND, as Parents and Guardians *

Ad Litem of C.K.G., *

*

 Petitioners, *

*

 v. * Hepatitis A vaccine; alleged

* significant aggravation of

SECRETARY OF HEALTH AND * seizures; no expert support;

HUMAN SERVICES, * ruling on the record

*

 Respondent. *

******************************************

Peter J. Sarda, Raleigh, NC, for petitioners.

Julia W. McInerny, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION1

On August 8, 2013, petitioners filed a petition under the National Childhood Vaccine 

Injury Act, 42 U.S.C. § 300aa-10–34 (2006), on behalf of their daughter C.K.G., alleging that 

hepatitis A vaccine administered to C.K.G. on August 19, 2010, exacerbated her preexisting 

migraines and seizures. Pet. at 2.

 

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’s website, in 

accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 

2002). 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.
2

The undersigned assumes that by “exacerbate,” petitioners are claiming that hepatitis A 

vaccine significantly aggravated C.K.G.’s preexisting complex migraine headaches and seizures. 

The Vaccine Act defines “significant aggravation” in § 300aa-33(4):

The term “significant aggravation” means any change for the 

worse in a preexisting condition which results in markedly greater 

disability, pain, or illness accompanied by substantial deterioration 

of health.

On June 2, 2014, respondent filed her Rule 4(c) Report recommending that compensation 

not be awarded in this case. On June 4, 2014, the undersigned held a telephonic status 

conference with counsel to discuss respondent’s report. The undersigned issued an Order on 

June 4, 2014, setting a deadline of August 29, 2014, for petitioners to file an expert report in 

support of their allegations.

On August 13, 2014, petitioners filed a motion for additional time, requesting an 

additional 60 days or until October 28, 2014, to find an expert to support their allegations. The 

undersigned granted petitioners’ motion on August 13, 2014. On October 22, 2014, petitioners 

filed a second motion for additional time, requesting an additional 65 days or until January 5, 

2015, to find an expert to support their allegations. The undersigned granted petitioners’ motion

on October 23, 2014. On January 5, 2015, petitioners filed a third motion for additional time, 

requesting an additional 10 days or until January 15, 2015, to find an expert to support their 

allegations. The undersigned granted petitioners’ motion on January 6, 2014.

On January 15, 2015, petitioners filed a Notice stating that “petitioners are unable to 

obtain a witness who can reasonably expect to qualify as an expert under the Althen standards.” 

On January 20, 2015, the undersigned held a telephonic status conference with counsel, during 

which petitioners’ counsel orally moved for a ruling on the record.

The undersigned GRANTS petitioners’ motion for a ruling on the record and 

DISMISSES this case for failure to make a prima facie case of causation and/or significant 

aggravation.

FACTS

Pre-vaccination Records

C.K.G. was born on January 8, 2001. Her mother’s pregnancy was complicated with 

pregnancy-induced hypertension (“PIH”) and gestational diabetes mellitus (“DM”). Med. recs. 

Ex. 1, at 63.

On February 13, 2002, at Jacksonville Children’s Clinic, C.K.G. at 13 months was 

diagnosed with esotropia (being cross-eyed). Id. at 155.
3

On August 15, 2002, C.K.G. at 19 months was diagnosed with gross motor delay. Id. at 

23.

On August 19, 2002, C.K.G. was evaluated at Onslow Memorial Hospital Department of 

Rehabilitation, where physical therapist Leslie A. Mosier noted that C.K.G. at 19 months had 

gross motor delays. Id. at 63. C.K.G.’s neuromuscular tone in her upper and lower extremities 

was mildly decreased. Id. Her equilibrium was mildly decreased, secondary to poor proximal 

strength and control. Id. She had bilateral winged scapulas. Id.

On September 9, 2002, PT Mosier recommended that C.K.G. receive a full speech 

language pathology evaluation. Id. at 89.

On February 13, 2003, C.K.G. was at Jacksonville Children’s Clinic, where she was

diagnosed with mild developmental delay, strabismus (with a history of ophthalmologic referral 

at six months), gross motor delay likely secondary to decreased lower extremity tone, and 

delayed walking. Id. at 24–25. She was referred for a neurology consultation. Id. On the day 

before this examination, C.K.G. was diagnosed with hypotonia. Id. at 23.

On June 6, 2006, when C.K.G. was five years old, she was at Jacksonville Children’s 

Clinic, complaining that the right side of her head hurt for two hours. Her father, a pediatrician, 

said she did not have fever. Id. at 15. A Lab Corp. test on June 6, 2006, showed that C.K.G. had 

elevated tryptase, indicating she experienced a systemic mast cell event. Id. at 6. On the same 

day, Dr. Dean Batten did a CT scan of C.K.G.’s brain, noting she had a sudden, severe headache 

in the right-sided/temple region and a fever of 101.8 degrees. Id. at 45. The CT scan was 

normal. Id. On the same day, C.K.G. was carried from home to Onslow Memorial Hospital ED

with a headache and a fever of 101.2 degrees. Id. at 50. She complained of right-sided splitting 

headache with fever since noon. Id. 

From July 27 to 28, 2006, C.K.G. had an ambulatory EEG under the direction of 

neurologist Dr. Christine T. Burch. Id. at 43–44. The EEG was abnormal due to the presence of 

a generalized spike in wave and poly spike in wave discharge that was somewhat poorly 

organized. Dr. Burch noted, “This indicates most likely primary generalized epilepsy . . . .” Id. 

On November 10, 2006, C.K.G. saw a pediatric and adult urologist, Dr. Robert T. 

Bennett, for lysis of her labial lesions. Id. at 40. 

On April 17, 2007, C.K.G. visited Jacksonville Children’s Clinic, complaining of a 

temporal headache. Id. at 4.

On April 23, 2007, C.K.G. had surgery for a fracture of her left arm due to falling off a 

balance beam during gymnastics. Id. at 213.
4

On December 3, 2008, C.K.G. visited Jacksonville Children’s Clinic, complaining of 

numbness in her hands and right jaw, right-sided headache, and transient weakness that lasted 

about five minutes. Id. at 99. She was diagnosed with a probable seizure. Id. 

On December 4, 2008, C.K.G. visited East Carolina Neurology, recounting her symptoms 

of right jaw pain, left hand weakness, and left distal lower extremity weakness leading to 

dragging. Id. at 263. This lasted 15 minutes, and she had a headache afterwards. Id. 

The neurologist’s differential diagnosis was seizure, classic migraine, or transient ischemic 

attack (“TIA”). Id. 

On March 20, 2009, C.K.G. saw Dr. Burch, her neurologist, complaining of weakness on 

one side lasting 15 minutes, followed by a headache, which Dr. Burch thought most likely a 

classic migraine. Id. at 97. Dr. Burch noted that C.K.G.’s methylenetetrahydrofolate reductase 

(“MTHFR”) level was slightly abnormal, for which C.K.G. took folate. Id. Dr. Burch’s 

diagnosis was classic migraine involving a neurologic deficit of hemiplegia for 15 minutes. Id.

Post-vaccination Records

On August 19, 2010, C.K.G. received hepatitis A vaccine. Med. recs. Ex. 2, at 1.

On August 20, 2010, C.K.G. visited Pitt County Memorial Hospital. Med. recs. Ex. 5, at 

1. A respiratory culture showed moderate gram positive cocci. Id. at 5. A brain MRI done on

the same day was normal. Id. at 6. A chest x-ray done the same day showed streaky opacities in 

the right upper lung zone, which might represent atelectasis or possibly developing infiltrate. Id.

at 7. Aspiration was a consideration. Id. Dr. Douglas R. Gallo took a history and physical on 

August 20, 2010. Id. at 8–10. After C.K.G.’s vaccination, she ate at Chick Fil A and went 

home. Id. at 8. She helped pack a van for her father’s trip and ate lasagna at 7:00 p.m. Id. 

C.K.G.’s mother suspected C.K.G. fell behind on her fluids. Id. C.K.G. had not had any of the 

G2 Gatorade she normally drank. Id. At 11:15 p.m., while the family was driving, C.K.G. was 

in the back seat when she started gurgling and slumped over. Id. Her eyes deviated to the right,

and she drooled. Id. She was not speaking or following commands. Id. There was some 

vomitus. Id. She had tonic movements, but no loss of bowel or bladder. Id. This lasted five 

minutes. Id. EMS took her to Duplin General ED, where she had a second seizure. Id. This 

time, she was incontinent of urine. Id. Her seizures lasted for over 32 minutes. Id. Her left arm 

where she received the hepatitis A injection was sore. Id. Family history shows that C.K.G.’s 

sister has positional orthostatic tachycardia syndrome (“POTS”), and her brother has an atrial 

flutter. Id. at 9. C.K.G.’s temperature was 99 degrees. Id. Her white blood count was elevated 

at 16.4. Id. She had a history of seizing when she was dehydrated. Id. at 10.

On August 20, 2010, Dr. Burch, C.K.G.’s neurologist, wrote that C.K.G. had a history of 

seizures at age five, possibly secondary to morphine. Id. at 19. She had an episode of status 

epilepticus lasting 30 minutes. Id. She had a history of complicated migraines and had a mild 

delay with speech articulation. Id. C.K.G. had abnormal EEGs in the past with slowing of the 
5

left hemisphere. Id. She had a history of strabismus (when the eyes do not line up in the same 

direction). Id. She had a history of complicated migraine vs. partial seizure two years earlier in 

2008. Id. at 20. She had delay and hypotonia. Id. Her temperature was 99.5 degrees, but over 

72 hours, she had a maximum temperature of 102.2 degrees and a minimum of 99 degrees, with 

an average temperature of 100.2 degrees. Id.

On August 20, 2010, Dr. Gallo noted that C.K.G.’s mucus plug was suctioned. Id. at 33.

An MRI of C.K.G.’s brain on August 20, 2010 was normal. Id. at 34. Dr. Gallo stated 

the next day that infection seemed unlikely given C.K.G.’s clinical status. Id. at 37. However, 

given the risk of fever and aspiration during her seizure and postictal periods, C.K.G. would be 

administered a second dose of Ceftriazone that day. Id. at 37. When C.K.G. was sent home, she 

was prescribed Augmentin for five days in order to complete a seven-day course of antibiotics. 

Id.

On August 21, 2010, Dr. Lilan Dusabe-Ziherambere, a pediatrician, noted that C.K.G.

was extubated at 12:15 p.m. on August 20, 2010. Id. at 13. Just prior to her extubation, C.K.G.

had fever and thick secretions. Id. Therefore, trachial aspirate and blood cultures were obtained,

and C.K.G. was started on an antibiotic, Rocephin. Id. C.K.G.’s trachial aspirate grew out 

oropharyngeal flora. Id. at 18.

On August 22, 2010, C.K.G. was discharged from the hospital with a diagnosis of status 

epilepticus and fever from an unclear source. Id. at 17. She was prescribed Keppra, Diastat for 

seizures, and folic acid due to her MTHFR. Id.

On September 15, 2012, two years later, C.K.G. was brought to Vidant Medical Center 

with altered mental status, right-sided weakness, slurred speech, and confusion. Id. at 173. Her 

mother reported this began like previous events at 2:00 p.m. Id. C.K.G. presented at Onslow ED 

with her right hand clenched and painful. Id. She had lethargy and malaise. Id. at 173–74. Her 

temperature was 97.3 degrees. Id. at 174. Dr. Inga S. Aikman saw her that day and said C.K.G.

was taking Topomax and Trileptal. Id. at 176. C.K.G.’s seizures began on September 14, 2012,

when she complained of seeing a white light and then developed pain and clenching of her right 

hand. Id. Later that night, she was found confused and unable to talk or walk. Id. Her parents 

reported that she had similar episodes within the past year, marked by pain in her right hand,

which traveled to the right side of her face. Id. She had these episodes every six months. Id. 

The most recent spell was at the beginning of the month. Id. She had several brain MRIs, which 

were normal. Id. She had a history of gross motor delay and did not walk until she was 16 

months of age. Id. The differential diagnosis was that she was most likely having a complex 

migraine, but Dr. Aikman noted pseudoseizure2should also be considered. Id. at 179. 

 

2

Pseudoseizure is “an attack resembling an epileptic seizure but being a type of conversion disorder; it 

lacks the electroencephalographic characteristics of epilepsy and the patient may be able to stop it by an 

act of will.” Dorland’s Illustrated Medical Dictionary 1546 (32d ed. 2012). Conversion disorder is “a 
6

On September 15, 2012, C.K.G. saw Dr. Burch, her neurologist, who noted a one-day 

history of headache, fever, altered mental status, and questionable weakness on her right side. 

Id. at 188. The weakness was questionable because, on examination, C.K.G. had no weakness, 

sensory deficits, or cranial nerve deficits. Id. C.K.G. spoke in one-word answers and called Dr. 

Burch “C.K.G.” Id. That week C.K.G. struggled with her accelerated math program with 

tutoring and had difficulty sleeping because of it. Id. “It should be noted her sister years ago 

was admitted for pseudoseizures after being in an accelerated math program.” Id. The 

differential diagnosis was seizure, complicated/confusional migraine, encephalitis, or functional 

cause (no physiologic basis). Id. Family history showed C.K.G.’s brother had hypotonia, and 

her sister had pseudoseizures. Id. at 189.

Dr. Burch performed an EEG on C.K.G. on September 15, 2012, which was abnormal. 

Id. at 203. C.K.G. had asymmetric background with slowing of the left hemisphere. Id.

For the sake of brevity, the undersigned omits a number of additional records and 

summarizes a recent record from Duke Medicine, dated July 15, 2013. Med. recs. Ex. 4, at 6–7. 

Nurse Practitioner Lyndsey Nicole Prange noted C.K.G.’s history of probable hemiplegic 

migraines with recurrent headaches. Id. She had three episodes of right hemiplegia in 2008, 

2011, and recently. Id. The last episode required hospitalization at Duke on March 28, 2012,

and was accompanied by aphasia. Id. C.K.G. had a history of generalized tonic-clonic status 

epilepticus, the first episode occurring in June 2006, the second episode in “September3” 2010 

after an immunization, and the third episode (a complex partial seizure) occurring on March 30, 

2013, including loss of consciousness, left nystagmus, and foaming at the mouth. Id. C.K.G.’s 

MTHFR mutation required use of folic acid. Id. She had an abnormal anticardiolipin antibody 

and von Willibrand titers. Id. C.K.G. had vitamin D deficiency and mitochondrial DNA whole 

gene sequencing, 2 VUS (variant of unknown significance). Id.

DISCUSSION

The first issue in this case is whether C.K.G.’s condition after her vaccination was 

substantially worse than her condition before vaccination. Before vaccination, C.K.G. had gross 

motor delay, speech dysfunction, complicated migraine headaches, seizures, and abnormal 

 

mental disorder characterized by conversion symptoms (loss or alteration of voluntary motor or sensory 

functioning suggesting physical illness, such as seizures, paralysis, dyskinesia, anesthesia, blindness, or 

aphonia) having no demonstrable physiological basis and whose psychological basis is suggested by (1) 

exacerbation of symptoms at times of psychological stress, (2) relief from tension or inner conflicts 

(primary gain) provided by the symptoms, or (3) secondary gains (support, attention, avoidance of 

unpleasant responsibilities) provided by the symptoms.” Id. at 549. “Symptoms are neither intentionally 

produced nor feigned. . . .” Id.

3 This should be August 2010.
7

EEGs. After vaccination, C.K.G. had seizures and migraine headaches. The second issue, 

assuming there was substantial deterioration, is whether the vaccine was the causal factor.

To satisfy their burden of proving causation in fact, petitioners 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. Sec’y of HHS, 956 F.2d 1144, 1148 (Fed. Cir. 1992):

A persuasive medical theory is demonstrated by “proof of a logical 

sequence of cause and effect showing that the vaccination was the 

reason for the injury[,]” the logical sequence being supported by 

“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.

Petitioners must show not only that but for hepatitis A vaccination, C.K.G. would not 

have had a seizure and migraines, but also that the vaccine was a substantial factor in causing her 

seizure and migraines. Shyface v. Sec’y of HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999).

Although petitioners allege that hepatitis A vaccination exacerbated C.K.G.’s seizure 

disorder and migraines, the medical records do not prove she had worsening of her seizure 

disorder or migraines. Petitioners did not file a medical expert report in support of their 

allegations. The undersigned gave petitioners 225 days, over seven months, to find an expert.

They did not find one. The Vaccine Act does not permit the undersigned to rule for petitioners 

based on their claims alone, “unsubstantiated by medical records or by medical opinion.” 42 

U.S.C. § 300aa-13(a)(1). 

Thus, petitioners have not made a prima facie case of causation.

The undersigned GRANTS petitioners’ motion for a ruling on the record and 

DISMISSES this case for petitioners’ failure to prove the allegations in their petition by a 

preponderance of the evidence. 42 U.S.C. § 300aa-13(a)(1)(A).
8

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.4

IT IS SO ORDERED.

January 20, 2015 s/Laura D. Millman 

DATE Laura D. Millman

 Special Master

 

4

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or 

jointly, filing a notice renouncing the right to seek review.