# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 487V

Filed: March 9, 2021

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

BARBARA PERKINS

, *

* Dismissal; T etanus

- diphtheria

Petitioner, * acellular pertussis (“ Tdap ”)

* Vaccine; Miller

- Fisher Variant;

v. * Guillain

- Barre Syndrome (“GBS”)

*

SECRETARY OF HEALTH *

AND H UMAN SERVICES, *

* Respondent. *

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

Lawrence Michel

, Esq., Kennedy, Berkley, et al., Salinas, KS

, for petitioner. Mallori Openchowski , Esq., U.S. Dept. of Justice, Washington, DC for respondent

.

DECISION 1

Roth, Special Master:

On April 6, 2017

, petitioner filed a p etition for Vaccine Compensation in the National

Vacci ne Injury Compe n sation Program (“the Program”)

, 2 alleging that a tetanus

- diphtheria

acellular pertussis (“ Tdap ”) she received on November 2, 2015 caused h er to develop the Miller

Fisher variant of Guillain

- Barre Syndrome (“GBS”)

. The information in the record, however, does

not support entitlement to an award under the Program. On March 9, 2021

, petitioner filed a

Motion for Dismissal Decision requesting that h er case be dismissed. ECF No. 66.

1 Although this Decision has been formally designated “ un published,” it will nevertheless be posted on the Court of Federal Claims’ website, in accordance with the E

- Government Act of 2002, Pub. L. No. 107

- 347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will

be available to anyone with access to the internet. However, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redactio n “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unw arranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id

.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755, codified as amen ded, 42 U.S.C. §§ 300aa

- 10 et seq. (hereinafte r “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act.2

To receive compensatio n under the Program, petitioner must prove either 1) that s he suffered a “Table Injury”

– i.e., an injury falling within the Vaccine Injury Table

– corresponding

to h er vaccination , or 2) that s he suffered an injury that was actually caused by a vaccine. See §§ 13(a)( 1)(A) and 11(c)(1). An examination of the record did not uncover any evidence that petitioner suffered a “Table Injury.” Because there were insufficient medical records supporting petitioner’s claim, petitioner was required to file a medical opinion to sup port her claim. See § 13(a)(1).

Petitioner filed an expert report from Dr. Axelrod, an immunologist. See Pet. Ex. 12, ECF

No. 24. In his initial report, Dr. Axelrod placed the onset of petitioner’s Miller Fisher variant of

GBS one week prior to January 6, 2016. Pet. Ex. 12 at 2. He then later concluded that the onset of petitioner’s Miller Fisher variant of GBS was mid

- December, or approximately 42 days after petitioner received the Tdap vaccination on November 2, 2015 , based on the allegations contained

in the Petition. Id .; Petition at ¶ 3. In a subsequent report, Dr. Axelrod wrote that petitioner reported an onset of symptoms on December 15, 2015; however, Dr. Axelrod based this opinion on the

inf ormation contained in petitioner’s affidavit which was filed on April 6, 2017, over a year after

the events and which was not corroborated by any of the contemporaneous medical records. See Pet. Ex. 19, ECF No. 31 ; Pet. Ex. 8, ECF No. 10.

A Rule 5 status conference was held on December 19, 2018, at which time there was a

discussion about the conflicts in onset between the contemporaneous medical records and the

statements contained in p etitioner ’s affidavit which were relied upon by Dr. Axelrod in h is report

. Scheduling Order at 3

- 4, ECF No. 37. Petitioner’s counsel advised that Dr. Axelrod could not

su pport his opinion in this case unless onset was in mid

- December. Id

. Thereafter, p etitioner filed a status report on February 4, 2019, confirming that Dr. Axelrod could only support a theory of causation if petitioner’s symptoms began in mid

- December 2015. ECF No. 38.

An onset hearing was held on November 5, 2019, to hear testimony f rom petitioner and her family members regarding the conflict between her alleged onset in mid

- December 2015 and the onset reflected by her medical records. See Scheduling Order, ECF No. 52. A Ruling on Onset was issued on January 8, 2021

, finding that the petitioner’s symptoms associated with her diagnosis of

the Miller

- Fisher variant of GBS began after January 4, 2016. ECF No. 60. As discussed in detail in the Ruling on Onset , petitioner’s alleged onset of symptoms in mid

- December 2015 found no support in the m edical records, testimony, or other evidence submitted by petitioner.

During a status conference on February 26, 2021, petitioner’s counsel advised that petitioner’s expert could not support a causation theory in this matter based on the onset foun d in the Ruling, and petitioner intended to file a Motion for Dismissal. See Scheduling Order at 1, ECF

No. 64.

Accordingly, it is clear from the reco rd in this case that petitioner has failed to demonstrate

either that s he suffered a “Table Injury” or that h er injuries were “actu ally caused” by a

vaccination. Thus, this case is dis missed for insufficient proof. The Clerk shall enter judgment accordingly.3

IT IS SO ORDERED.

s/ Mindy Michaels Roth Mindy Michaels Roth Special Master