In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 15-685V

Filed: October 14, 2016

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PENNY WALDEN, * UNPUBLISHED

* 

Petitioner, * Special Master Hamilton-Fieldman

*

v. * Dismissal for Failure to Prosecute;

* Dismissal for Insufficient Proof;

SECRETARY OF HEALTH * Measles-Mumps-Rubella (“MMR”)

AND HUMAN SERVICES, * Vaccine; Fibromyalgia.

* 

Respondent. *

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DISMISSAL DECISION1

On July 1, 2015, Penny Walden (“Petitioner”) petitioned for compensation under the 

National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine 

Act”). Petitioner alleged that she developed Fibromyalgia because she received the MeaslesMumps-Rubella (“MMR”) vaccine. The undersigned now finds that the information in the record 

does not show entitlement to an award under the Program. 

On December 18, Respondent filed a Report, pursuant to Vaccine Rule 4(c), noting that 

Petitioner had neither alleged a Table injury nor shown that the MMR vaccine actually caused her 

alleged Fibromyalgia. Resp’t’s Report at 6-7, ECF No. 19. As to the latter, Respondent noted as 

follows:

In this case, the medical records alone fail to provide preponderant proof of a 

vaccine injury. Petitioner has not provided a medical theory showing that the MMR 

vaccination can cause fibromyalgia, there is no sequence of cause and effect, and 

there is no temporal relationship between vaccination and injury. Petitioner had a 

single medical evaluation for joint pain on November 27, 2012, with no subsequent 

 

1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the 

undersigned intends to post this decision on the website of the United States Court of Federal 

Claims, in accordance with the purposes espoused in the E-Government Act of 2002. See 44 U.S.C. 

§ 3501 (2012). Each party has 14 days to request redaction “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 unwarranted invasion of privacy.” Vaccine Rule 18(b).
2

follow-up visits or complaints for ongoing symptoms in 2012 or 2013. Based upon 

the medical records, it appears that those symptoms resolved. Petitioner had new 

complaints of joint pain in May 2014. There is no evidence in the medical records 

to support petitioner’s claims that the joint pain she reported in May 2014 was 

related to her isolated complaints in November 2012. She saw numerous physicians 

between those two visits, but she did not complain of or seek treatment for joint 

pain. The diagnosis of fibromyalgia was not made until May 2014, over eighteen 

months after vaccination, and therefore has no temporal relationship to vaccination.

Id. at 7. As a result, Respondent recommended that a decision be entered denying compensation. 

Id.

On January 14, 2016, the undersigned held a status conference with counsel representing 

Petitioner and Respondent, at which the undersigned noted several issues with the case, including 

“the lack of contemporaneous medical records, the length of time it took for Petitioner to receive a 

diagnosis, and the absence of documentation of symptoms of Petitioner’s alleged condition,” as well 

as “whether Petitioner’s counsel had a reasonable basis to file this claim.” Scheduling Order (Jan. 

15, 2016) at 1, ECF No. 20.

On April 4, 2016, Petitioner’s counsel moved to withdraw as her attorney. Mot. to 

Withdraw, ECF No. 26. Two days later, the undersigned granted Counsel’s motion and ordered 

Petitioner to file a status report updating the Court on her progress in securing a different attorney 

by June 22, 2016. Order, ECF No. 27.

On June 20, Petitioner telephoned the Court and requested an additional 30-60 days in order 

to file the status report specified in the Court’s previous order. See Unnumbered Docket Entry, 

June 20, 2016. After determining that Respondent did not object to the motion, the undersigned 

granted Petitioner’s motion and ordered that she file a status report by August 9, 2016. Status 

Report Order, ECF No. 29.

On September 14, 2016, after receiving no communication from Petitioner since the June 20 

phone call, the undersigned ordered Petitioner to show cause why her petition should not be 

dismissed by October 5, 2016. Order to Show Cause at 1, ECF No. 37.

On October 11, 2016, Petitioner responded to the undersigned’s show cause order, 

explaining that she was “no longer pursuing this claim due to [her] failing health,” citing “mental 

and physical stress.” Resp. to Show Cause Order at 1, ECF No. 39. Petitioner further admitted that, 

after speaking with several physicians, she was unable to find any who would opine in favor of 

causation. Id.
3

To receive compensation under the Vaccine Act, Petitioner must prove either 1) that she

suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to 

her vaccination, or 2) that she suffered an injury that was actually caused by a vaccine. See 42 

U.S.C. §§ 300aa-13(a)(1)(A), 300aa-11(c)(1) (2012). An examination of the record did not uncover 

any evidence that Petitioner suffered a “Table Injury.” Further, the record does not contain any 

persuasive evidence that Petitioner’s injuries were caused by a vaccination.

Under the Vaccine Act, a petitioner may not be awarded compensation based solely on the 

petitioner’s claims alone. Rather, the petition must be supported by either medical records or by the 

opinion of a competent physician. § 300aa-13(a)(1). In this case, because the medical records are 

insufficient to establish entitlement to compensation, a medical opinion must be offered in support

of causation. Petitioner, however, has offered no such opinion.

In light of the above, the undersigned hereby DENIES this petition. This case is dismissed 

for failure to prosecute and for insufficient proof. In the absence of a motion for review, the 

Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

/s/ Lisa D. Hamilton-Fieldman

 Lisa D. Hamilton-Fieldman

Special Master