In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 16-1096V

Filed: June 26, 2017

Not for Publication

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SUE FRAMPTON, *

 *

Petitioner, * 

 * 

v. * Influenza (“flu”) vaccine; chronic

 * inflammatory demyelinating

SECRETARY OF HEALTH * polyneuropathy (“CIDP”); no 

AND HUMAN SERVICES, * expert report; dismissal

 *

 Respondent. *

*

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David C. Richards, Salt Lake City, UT, for petitioner.

Kathryn A. Robinette, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION1

On September 1, 2016, petitioner filed a petition under the National Childhood Vaccine 

Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that a few days after she received influenza 

(“flu”) vaccine on September 11, 2013, she had the onset of chronic inflammatory demyelinating 

polyneuropathy (“CIDP”). Pet. Preamble. Both her neurologist and her personal care physician, 

however, have diagnosed her with Charcot-Marie-Tooth (“CMT”) disease.

The Federal Circuit in Capizzano v. Secretary of Health and Human Services emphasized 

that the special masters are to evaluate seriously the opinions of petitioner’s treating doctors 

since “treating physicians are likely to be in the best position to determine whether a logical 

 1 Because this unpublished decision contains a reasoned explanation for the special master’s action in this 

case, the special master intends to post this unpublished decision on the United States Court of Federal 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). 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, petitioner has 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 banned categories listed above, the special master shall redact such material from public access. 
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sequence of cause and effect show[s] that the vaccination was the reason for the injury.” 440 

F.3d 1317, 1326 (Fed. Cir. 2006); see also Broekelschen v. Sec’y of HHS, 618 F.3d 1339, 1347 

(Fed. Cir. 2010); Andreu v. Sec’y of HHS, 569 F.3d 1367, 1375 (Fed. Cir. 2009). 

On September 9. 2016, the undersigned issued an Order to Show Cause why this case 

should not be dismissed. During a telephonic status conference on September 29, 2016, the 

undersigned discussed the Order to Show Cause with counsel and ordered petitioner’s counsel to 

file additional medical records and her Social Security Disability Insurance (“SSDI”) 

documentation.

On November 18, 2016, petitioner filed more medical records and SSDI records. During 

a telephonic status conference on February 15, 2017, petitioner’s counsel stated he wanted to 

give a neurologic consultant all the medical records to see if he would support petitioner’s 

allegations. 

On March 6, 2017, respondent filed his Rule 4(c) Report, recommending against an 

award of compensation, particularly in light of petitioner’s treating doctors never diagnosing her 

with CIDP and her treating neurologist, Dr. Chebeleu, diagnosing petitioner with Charcot-MarieTooth disease. Rep. at 13. One factor weighing against petitioner having CIDP is her normal 

reflexes and one instance of hyperreflexia. Id.

During a telephonic status conference on March 22, 2107, petitioner’s counsel stated that 

petitioner’s neurologic consultant was Dr. Marcel Kinsbourne. Petitioner’s counsel requested 60 

days to file a report. Petitioner never filed an expert report from Dr. Kinsbourne.

On May 22, 2017, the undersigned held another telephonic status conference with 

counsel. Petitioner’s counsel said that Dr. Kinsbourne would not support petitioner’s allegations 

and believed petitioner has Charcot-Marie-Tooth syndrome. Petitioner’s counsel wanted 30 days 

to explain to petitioner her options. The undersigned issued an Order on May 22, 2017 that 

petitioner shall file an appropriate pleading on June 21, 2017.

On June 21, 2017, petitioner did not file anything. On June 23, 2017, petitioner’s counsel 

contacted the undersigned’s law clerk to explain that he had personal difficulties arise and 

needed more time to file an appropriate pleading. The undersigned issued a non-PDF Order 

giving petitioner until June 30, 2017 to file an appropriate pleading dismissing this case.

In retrospect, this extension of time for petitioner to file a pleading to dismiss petitioner’s 

case was unnecessary and the undersigned STRIKES this non-PDF Order and DISMISSES this 

petition for failure to prove a prima facie case of causation in fact.

Medical Records

Petitioner’s neurologist, Dr. Lia-Ana Chebeleu, saw petitioner on September 3, 2014, and 

found hyperreflexia in her knees, biceps, and triceps muscles as her deep tendon reflexes 
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measured 3+. In CIDP, a chronic polyneuropathy, deep tendon reflexes are either low or absent, 

not hyperreflexic. Med. recs. Ex. 4, at 5; see also Med. recs. Ex. 2, at 26.

On October 8, 2014, after petitioner had a nerve conduction test and EMG done, Dr. 

Chebeleu entertained the diagnosis of CMT. Med. recs. Ex. 4, at 1.

On November 14, 2014, Dr. Wayne O. Brown, one of petitioner’s personal care 

physicians, also diagnosed petitioner with CMT. Med. recs. Ex. 2, at 30.

What is Charcot-Marie-Tooth Disease?

Dorland’s Illustrated Medical Dictionary 530 (32d ed. 2012), describes CMT as 

a group of hereditary conditions characterized by chronic motor and 

sensory polyneuropathy, of variable inheritance and including autosomal 

dominant, autosomal recessive, and X-linked forms. It is divided into two 

major types on the basis of nerve conduction velocities (NCV), each with 

subtypes: CMT1 is a demyelinating polyneuropathy with symmetrically 

slowed NCV, onion bulb formation, and segmental demyelination; CMT2 

is an axonal neuropathy, with normal NCV but of decreased amplitude, 

axonal loss visible on biopsy, and no onion bulb formation or segmental 

demyelination. Both are characterized by progressive symmetric distal 

muscle weakness and atrophy starting in the feet and legs, gait disturbance, 

and absent stretch reflexes. A variety of causative mutations have been 

identified at different loci, all concerned with myelin in Schwann cells, 

with the majority of cases of autosomal dominant CMT1 caused by 

duplication of chromosomal region 17p12, containing a gene encoding a 

peripheral myelin protein (PMP22).

Flu vaccine does not cause a genetic disease. Moreover, there is no evidence from 

petitioner’s treating physicians or from her neurologic consultant Dr. Kinsbourne that petitioner 

has CIDP.

DISCUSSION

To satisfy her burden of proving causation in fact, petitioner 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. Secretary of Health and Human Services, 956 F.2d 1144, 1148 (Fed. Cir. 1992):

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

sequence of cause of and effect showing that the vaccination was 
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the reason for the injury [,]” the logical sequence being supported 

by a “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 petitioner’s 

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.

Petitioner must show not only that but for her flu vaccination, she would not have CMT 

disease, but also that her flu vaccination was a substantial factor in causing CMT disease. 

Shyface v. Sec’y of HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999). She can hardly prove that flu 

vaccine caused her CIDP when she does not have CIDP.

The Vaccine Act, § 300aa-13(a)(1), prohibits the undersigned from ruling for petitioner 

based solely on her allegations unsubstantiated by medical records or medical opinion. No 

medical records show that petitioner had an adverse reaction to flu vaccine. Petitioner has not 

filed a medical expert report in support of her allegations.

This petition is DISMISSED.

CONCLUSION

The petition is DISMISSED for failure to make a prima facie case. In the absence of a 

motion for review filed pursuant to RCFC Appendix B, the Clerk of Court is directed to enter 

judgment herewith.2

IT IS SO ORDERED.

Dated: June 26, 2017 /s/ Laura D. Millman 

 Laura D. Millman

 Special Master

 2 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.