# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: October 31 , 2014

* * * * * * * * * * * * * * * * UNPUBLISHED ELENA KARBUSHEVA, *

* Petitioner, * No. 13

- 040 V

*

v. *

* Special Master Dorsey

SECRETARY OF HEALTH * AND HUMAN SERVICES, * Dismissal Decision; Multiple

* Vaccines; Failure to File an Respondent. * Expert Report.

*

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

Elena Karbusheva , Pro Se, Boise, Idaho Julia McInerny, United States Dep’t of Justice , Washington, DC, for respondent.

DISMISSA L DECISION 1

On January 11, 2013, Ms. Elena Karbusheva ( “Ms. Karbusheva” or “ petitioner ” ) filed a petition, pro se , pursuant to the National Vaccine Injury Compensation Program, 2 alleging that

she suffered from “ G iana

– Barre (sic) syndrome

, 3 Landry’s a scends paralyses 4 (sic)

, lupus, encephalopasy 5 (sic), high blood pressure, chronicle 6 (sic) hepatitis B and diabetes. ” Petition (“Pet.”) at 1. Ms. Karbusheva states that these diseases occurred after she was vaccinated. Id.

1 Because this unpublished decision c ontains a reasoned explanation for the action in this case, the undersigned intends to post this decision on the United States Court of Federal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, 29 13 (codified as amended at 44 U.S.C. § 3501 and note (2006)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa

- 12(d)(4)(B). Further, consistent wit h 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 deleted 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 cita tions in this decision to

individual sections of th e Vaccine Act are to 42 U.S.C. § 300aa

. 3 “Guillain

- Barré syndrome”

4 “Land’s Ascending Paralysis”

5 “Encephalopathy”

6 “Chronic”

1Ms. Karbusheva’s vaccinatio n record shows that she received a number of vaccinations from March 16, 2009

, through January 14, 2011. See Petitioner’s Exhibit 9 (“Pet. Ex.”)

. The

information in the record does not show entitlement to an award under the Act. For the reasons

that fol low, this case is dismissed for insufficient proof.

I. Factual Background

Ms. Karbusheva was born in Russia on January 6, 1963 , but she lived in Uzbekistan just prior to moving to the United States. Pet. Ex. 21 at 1. An overview of Ms. Karbusheva’s

medica l history is set forth in petitioner’s exhibit 21 . She attended medical school in Uzbekistan and then worked as an obstetrician/gynecologist. Id. at 1. In 2009, Ms. Karbusheva came to the United States as a refuge e

. Id.

Since arriving in the United States, Ms. Karbusheva has been seen by many physi cians and health care providers. She has filed numerous medical records in this case

, some of which

will be summarized below in order to provide an overview of the facts that have been reviewed

and conside red by the undersigned.

As stated above, Ms. Karbusheva’s vaccination record shows that she received a number of vaccinations from March 16, 2 009, through January 14, 2011

. 7 Pet. Ex. 9 at 1

- 2. On June 28, 2012, Ms. Karbusheva underwent an MRI of her brain which showed “several hyperintense

lesion s ” which were thought to be “ early chronic microvascular changes

. ” Pet. Ex. 17 at 1. An

MRI of her cervical and lumbar spine performed on the same day showed cervical “ foraminal

stenosis ” 8 and “ multilevel l umbar spondylosis ” 9 with a “mass affect on the left S1 nerve root.”

Id. at 2

.

Ms. Karbusheva underwent a p hysical examination by Dr. Kathleen Sutherland on November 30, 2010 . Dr. Sutherland documented that Ms. Karbusheva looked well, was ambulating an d that she did not have inflammation of her joints. Pet. Ex. 21. Dr. Sutherland

also noted that Ms. Karbusheva had no evidence of significant respiratory limitations but that she

7 On March 16, 2009, Ms. Karbusheva received a hepatitis B vaccine. On Mar ch 20, 2009, Ms. Karbusheva received the Td (Tetanus diphtheria) vaccine. On April 16, 2009, and September 16, 2009, she received her second and third hepatitis B vaccinations. On February 1, 2010, Ms.

Karbusheva received the 2009

- 2010 H1N1 vaccine. On F ebruary 12, 2010, she received the varicella vaccine. On June 30, 2010, Ms. Karbusheva received the Tdap and Measles, Mumps, Rubella (MMR) vaccines. On August 4, 2010, Ms. Karbusheva received an MMR vaccine. On January 14, 2011, Ms. Karbusheva received another Td vaccination. On February 3, 2011, she

received a Fluvirin vaccine. Pet. Ex. 9 at 1

- 2.

8 “Foraminal Stenosis” is the narrowing of the cervical disc space caused by enlargement of a joint (the uncinate process) in the spinal canal. http://www.spine

- health.com/glossary/foraminal

stenosis

. 9 Lumbar spondylosis “describes bony overgrowths (osteophytes), predominantly those at the anterior, lateral, and, less commonly, posterio r aspects of the superior and inferior margins of vertebral centra (bodies). This dynamic process increases with, and is perhaps an inevitable concomitant, of age.” http://emedicine.medsc ape.com/article/249036

- overview

.

2did complain of “diffuse myalgias and arthralgias.” Id. Dr. Sutherland als o noted that Ms.

Karbusheva had hypothyroidism. Id.

On February 7, 2011, Ms. Karbusheva underwent a neurological consultation with Dr.

Jackie J. Whitesell . Ms. Karbusheva complained of numbness in her feet and chronic back pain.

Pet. Ex. 34 at 1 . D r. Whitesell not ed that Ms. Karbuseheva reported back pain that she attributed to mercury and dioxin exposure in the 1990s. Ms. Karbusheva also reported left sided weakness

and vision loss which occurred in 1995, and which Ms. Karbusheva associated with h er exposure to toxins. Id. Dr. Whitesell’s impression s were as follows:

1. Numbness and burning pain in her feet...if she has a peripheral neuropathy, it is quite mild.

2. Chronic daily headaches...

3. Abnormal MRI of the brain...However, I think the likelihood of he r having MS at this point is low.

4. Neck pain and low back pain...

5. Hearing loss.

6. Vitamin B12 deficiency.

Pet. Ex. 34 at 19

- 20.

An EMG study that was performed on April 8, 2011, on Ms. Karbusheva’s left leg

s howed that Ms. Karbusheva had “evidence of mild s ubacute or chronic L5/S1 radiculopathy in the left leg without ongoing denervation.” Pet. Ex. 33 at 2

.

Ms. Karbusheva underwent a neuropsychological consultation on June 2, 2011

, with Clay H. Ward, PhD. Pet. Ex. 41 at 3. Dr. Ward reported the fol lowi ng history, as provided by Ms.

Karbusheva :

The patient...presents with “systematic stress.” She

... is having problems with her asthma and pain in her shoulder and back...in the past she has been poisoned with mercury...she also had “micro strokes”...She has been o n disability in the past because of the mercury po i s oning ...this occurred in about 1986 or 1987...in 1995 she had a chloremic allergy reaction...she also had a small stroke in 2009. She is reporting problems with concentration, fatig ue and a high level of stres s.

Pet. Ex. 41 at 3.

Dr. Ward’s diagnosis was “ major depressive disord er versus adjustment reaction with depressed mood , p ain disorder associated with psychological and medical conditions and rule out cognitive disorder.” Pet. Ex. 41 at 4. In a foll ow up visit on June 28, 2011, Dr. Ward’s diagnosis also included probable “somatization disorder.” Pet. Ex. 41 at 1.

Ms. Karbusheva saw Dr. Whitesell in a follow

- up visit on July 19, 2011, with a chief complaint of “low back pain.” Pet. Ex. 34 a t 11. Dr. Whitesell noted that Ms. Karbusheva had

3an abnormal MRI which showed “chronic small vessel ischemic change[s]” in the brain. Id

. at
13. Dr. Whitesel l did not find any evidence of nerve problem s but suspected that Ms.

Karbusheva’s chronic L5

- S 1 radiculopathy 10 had progressed. Pet. Ex. 34 at 13.

In one of Ms. Karbusheva’s most current medical records filed in this case , dated August
14, 2012, neurosurgeon Dr. Ronald E. Jutzy notes that Ms. Karbusheva had a “left L5 and/or S1 radiculopathy” bu t “no objective reflex loss or motor atrophy.” Pet. Ex 36 at 1 . Dr. Jutzy

recommend ed conservative treatment. Id.

II. Procedural Background

Ms. Karbusheva filed her case pro se , and the case was initially assigned to Special

Master Laura Millman . Speci al Master Millman provided a list of vaccine attorneys for Ms.

Karbusheva to contact to assist in representing her

. See Order dated January 23, 2013. The case was reassigned to the undersigned on February 11, 2013. An initial status conference was held on April 4, 2013

. Ms. Karbusheva participated in the status conference with the assistance of her interpreter, Alexander Bazarsky. Ms. Julia Mclnerny appeared on behalf of respondent. Ms. Maria Keith, the court interpreter, also participated in the stat us conference with the consent of

Ms. Karbusheva. At that status conference, Ms. Karbusheva agreed to try to retain an attorney to represent her. Pri or to the status conference, Ms. Karbusheva had filed man y of her medical

records. D uring the status con ference, she also agreed to file additional information to support

her claim. See Order filed April 5, 2013.

On April 15, 2013, Ms. Karbusheva filed information regarding her physician visits and

documents related to her application for Social Security Supplemental Income. She included a list of 81 health care visits from February 2010 through March 2013. Ms. Karbusheva also filed a VAERs report dated December 17, 2012

, and a de scription of the adverse events which she

believes to be related to her v accinations, including a lengthy description of her health problems,

and a list of her medicati ons. On May 3, 2013, Ms. Karbusheva filed duplicates of the records previously filed on April 15, 2013, as well as some immunization records.

On June 4, 2013, the undersigned held a second status conference. Ms. Karbusheva appeared representing herself and Ms. Julia McInerny appeared on behalf respondent. A court interpreter again participated with the consent of petitioner. Ms. Karbusheva stated during the

s tatus conference that she had no t yet obtai ned counsel to represent her. The undersigned requested that Ms. Karbusheva file the records of the hospitalizations that she mentioned during the status conference, a s well as any other records related to her al leged vaccine injury, and a copy of a lawsuit that she filed in state court against the physician who administered the vaccine s to her, as discussed during the status conference. Ms. Karbusheva was a gain encouraged to

continue seeking to retain an attorn ey to represent her in this matter. See Scheduling Order filed June 5, 2013.

10 Radiculopathy is defined as a “disease of the nerve roots, such as from inflammation or impingement by a tumor or bony spur.” Dorland’s Illustrated Medical Dictionary (“Dorland’s”),

32 nd Ed. at 1571.

4On July 10, 2013, Ms. Karbusheva file d a set of documents labeled as “Petition to add Respondent’s to Suit.” This set of documents included a letter from the CEO of a hospi tal regarding Ms. Karbusheva’s concerns about the treatment she received in the emergency department of that hospital in January and February 2013. The documents also included an email from the American Civil Liberties Union to Ms. Karbusheva

, a copy of t he civil docket for

a lawsuit that Ms. Karbusheva filed in U.S. District Court for the District of Idaho on February
14, 2013, against a total of 31 defendants including various physicians, health centers , and representatives from various health care facil ities. The action was dismissed for lack of jurisdiction on March 8, 2013.

Also included in the documents filed by Ms. Karbusheva on July 10, 2013, is what appears to be a request by Ms. Karbusheva for this court to provide her with a “neurologist and

rheum atologist from another state.” See “Petition to add Respondent’s to Suit”, ECF No. 12, July 10, 2013, PDF pg. 20 of 20.

By order dated July 17, 2013, Ms. Karbusheva was again encouraged to retain an attorney to represent her. See Scheduling Order, July 17, 2013. On August 2 2 , 2013, the undersigned ordered that Ms. Karbusheva file any additional records in support of her claim as

well as a notice of completion , indicating that all relevant records had been filed, by September 20, 2013. Respondent was o r dered to file a respon se to petitioner’s filings by October 23, 2013. In addition, respondent requested the opportunity to file a motion to dismiss and the Rule 4 report by October 23, 2013. This request was granted. See Respondent’s Motion to Mod ify July 22, 2013 Scheduling Order, filed Aug. 21, 2013, ECF No. 16, at 2.

On September 10, 2013, petitioner file d e xhibits 1

- 208 on CD. The exhibits included a number of documents previously filed

, a document entitled “Petition”, a discussion of petiti oner’s concerns regarding the care she received at a third

- party facility, and what appears to be a request that this court join Ms. Karbusheva’s claims against the State of Idaho to the petition

that she has filed in this court.

A status conference was held on September 26, 2013. Ms. Karbusheva, respondent’s counsel and a court interpreter participated. During the status conference, Ms. Karbusheva informed the undersigned that she had retained an attorney, Ms. Simina Vourlis, to represent her.

Based on this development

, all deadlines were suspended to allow Ms. Vourlis to make an appearance in the case. See O rder filed S e ptember 26, 2013. On October 24, 2013, a consent

motion to substitute Attorney Simina Vourlis in place of Ms. Karbusheva was filed and granted

.

A status conference was held on December 19, 2013. Ms. Vourlis appeared on behalf of

Ms. Karbusheva

, and Ms. McInerney appe ared on behalf of respondent. During the status conference, the parties generally discussed the vaccinations that Ms . Karbusheva received , the

medical records and, more specifically, the vaccines which may have been administered to Ms.

Karbusheva outside of the applicable statute of limitations period. The parties also discussed the

fact that the H1N1 vaccination that Ms. Karbusheva received on February 1, 2010, is not covered by the National Vaccine Injury Compensation Program. Finally, the parties discus sed the ambiguity that existed with respect to Ms. Karbusheva’s alleged injuries and the fact that Ms.

Karbusheva h as filed various pleadings against entities that are not subject to this court’s

5jurisdiction. As Ms. Vourlis had only recently entered her appearance , she requested additional time to review the petition and the numerous exhibits that ha d been filed. Pe titioner’s counsel

was asked to file a status report by February 24, 2014, updating the court on the status of her

review of the records. See Order filed December 20, 2013.

The next status conference was held on April 24, 2014. Ms. Simina Vourlis appea red on behalf of Ms. Karbusheva

. Ms. Julia McInerny appeared on behalf of respondent. By her

request, Ms. Karbusheva also participated in the status conference with the assistance of a court
translator

. During the status conference, Ms. Karbusheva expre ssed her desire to terminate her

attorney

- client relationship with Ms. Vourlis. Although the undersigned inquired whether it was possible for Ms. Karbusheva and Ms. Vourlis to continue working together, after hearing Ms. Vourlis’s concerns about proceedin g and Ms. Karbusheva’s consent to allow Ms. Vourlis to withdraw as her counsel, the undersigned granted Ms. V ourlis’s motion to withdraw

. T he undersigned explained to Ms. Karbusheva that at this point, in order to proceed with her case,

she would need to file a report from a medical doctor in support of her claim. Ms. Karbusheva inquired as to what type of medical doctor she needed to support her claim and how to locate and retain the expert. The undersigned explained that she could not offer any legal a dvice to Ms. Karbusheva on how prosecute her claim and encouraged Ms. Karbusheva to seek the advice of another attorney. Ms. Karbusheva was ordered to retain another attorney or to file an expert report in her case by June 23, 2014. If she was unable to do so, Ms. Karbusheva was informed

that a Show Cause Order would be issued. See Order filed April 28, 2014.

On May 14, 2014 , Ms. Karbusheva filed a letter type document with a number of

attachments

. In these attached documents, Ms. Karbusheva stated th at she would represent

her self without an attorney or without medical experts. See “Letter” filed May14, 2014, ECF
No. 28, at 2

. She described her attempts to contact other attorneys to represent her and her ongoing health problem. Ms. Karbusheva also f iled emails and letters describing various issues

and health problems. Ms. Karbusheva did not, however, file any expert report, or any evidence to support her vaccine injury claim.

On June 1 9 , 2014, after another request by Ms. Karbusheva, her deadline to file an expert report or retain an attorney was extended to August 15, 2014.

On July 7, 2014, Ms. Karbusheva filed a “Motion for added continue law case for period

2013

- 2014 that VICP doesn’t work.” Ms. Karbusheva also filed documents , including a second

order of dismissal of her lawsuit filed in the U.S. District Court for the Distric t o f Idaho and a petition requesting compensation from St. Luke’s Health System, Family Medicine Health Center, and the State of Idaho, seeking twenty million dollar s in damages . She also filed a

motion to use medical literature in her case and filed several articles on medical conditions. Ms.

Karbusheva did not , however, file an expert report.

On July 14, 2014, petitioner filed a “Motion to direct me to Universit y Clinic to

California State or Taxes 11 (sic) State for exam and diagnosed Lupus and Neurological Diagnose” along with a memorandum. On July 18, 2014, petitioner filed a “Motion to add

11 “Texas”

6document Health Professionals Certification of Disability.” These fili ngs did not contain an

expert report.

From June 16 , 2014, to September 16, 2014, Ms. Karbusheva sent numerous emails to

the u ndersigned’s law clerk and they have been noted on the CM/ECF docket as informal email

communications. On October 31, 2014, c op ies of the emails were filed as Court ’s Exhibit s A through K

.

The undersigned issued an Order to Show Cause on August 25, 2014, ordering Ms. Karbusheva to file an expert report in support of her claim, or her petition would be dismissed.

Ms. Karbusheva sent additional emails to the und ersigned’s law clerk on July10, 2014, and July

18 , 2014. See Court Exhibit s F and G . On September 11, 2014, petitioner filed a “motion for a ruling on the record and PDF 01

- 208.” She also filed a “motion for add my expe rtise of my health that attached on 21 pages.” To date, Ms. Karbusheva has failed to file an expert report in support of her claim as ordered on August 25, 2014.

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 ev idence that the vaccination brought about [the] injury by providing: (1) a medical 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 showi ng 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 ef fect 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 pet itioner 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 t he medical records do

not support Ms. Karbusheva’s claim s , a medical opinion must be offered in support.

Ms. Karbusheva has not offered a supportive expert report in support of her claim. Further, none of Ms. Karbusheva’ s treating physicians attribute any of her conditions to her

vaccination s

. There is also no preponderant evidence in the record of : (1) a medical theory causally con necting the vaccine and Ms. Karbusheva’s injury; (2) a logical sequence of cause

7and effect showing that the vaccine (s) wa s the reason for her injury; and (3) a showing of a proximate temporal relationship between the vaccine and his injury. Althen v. Sec’y of Health &

Human Servs.

, 418 F.3d 1274, 1278 (Fed. Cir. 2005) ; 42 U.S.C. § 300aa

– 13(a)(1) (requiring proof by a p repon derance of the evidence).

IV. Conclusion

Therefore, Ms. Karbusheva’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 ORD ERED.

_________________________ Nora Beth Dorsey Special Master

8Notice of filing Court Exhibits A through F

Courts Exhibits Date of E

- mail

A June 16, 2014

B June 26, 2014

C June 29, 2014

D July 1, 2014

E July 1, 2014

F July 10, 2014

G July 18, 2014

H August 1, 2014

I August 5, 2014

J September 9, 2014

K September 16, 2014

9