1

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS 

No. 18-1242V 

Filed: February 16, 2021 

UNPUBLISHED 

 

 REISSUED FOR PUBLICATION

 APR 2 2021

 OSM

 U.S. COURT OF FEDERAL CLAIMS

ELIZABETH SALAZAR, parent of D.R., 

a minor,

Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Elizabeth Salazar, pro se, Houston, TX, for petitioner.

Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.

DECISION1

On August 20, 2018, petitioner filed this claim on behalf of her minor son, D.R., 

alleging that a human papillomavirus (“HPV”) vaccine received on August 21, 2015, 

caused him to suffer permanent blindness and that an influenza (“flu”) vaccine, received 

on October 20, 2015, caused him neurological injuries that lead to his diagnosis of 

cerebellar ataxia. (ECF No. 1.) 2 For the reasons discussed below, this petition is now 

dismissed. 

I. Procedural History

 This case was originally assigned to Special Master Sanders. (ECF No. 5.) 

Special Master Sanders held an initial status conference and gave petitioner an 

opportunity to retain counsel to represent her in this case. (ECF No. 9.) 

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will 

be posted on the United States Court of Federal Claims’ website in accordance with the E-Government 

Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic 

Government Services). This means the decision will be available to anyone with access to the 

Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact 

medical or other information the disclosure of which would constitute an unwarranted invasion of privacy. 

If the special master, upon review, agrees that the identified material fits within this definition, it will be 

redacted from public access.

2

“ECF No.” refers to the location of each document on the court’s electronic docket for this case.

Special Master Horner 

Dismissal Decision; Human 

Papillomavirus Vaccine; 

Influenza Vaccine; 

Spinocerebellar Ataxia Type 

7 (SCA-7); Cerebellar Ataxia; 

Order to Show Cause; 

Insufficient Proof; Failure to 

Prosecute 
2

On November 14, 2018, an Order to Show Cause was issued following 

petitioner’s missed deadline. (ECF No. 13.) Thereafter, a second Order to Show 

Cause was issued following petitioner’s failure to provide a response to the first Order to 

Show Cause. (ECF No. 14.) A status conference was held on December 20, 2018. 

Petitioner reported that she was proceeding pro se. (ECF No. 15.) Special Master 

Sanders explained the medical records that petitioner needed to file in order to pursue 

her claim and petitioner agreed to file such records. (Id.) Between February 1, 2019 

and March 8, 2019, petitioner filed medical records to support her claim. (ECF Nos. 19-

21.) 

On August 28, 2019, this case was reassigned to my docket. (ECF No. 25.) 

Upon my review of the records, I held an initial status conference on November 22, 

2019. (ECF No. 31.) Based on my review, I explained to petitioner that she may have a 

difficult time proving her claim based on D.R.’s medical history and advised that 

petitioner will eventually need an expert opinion in order to proceed with her claim. 

However, I ordered respondent to provide his Rule 4(c) report to better assist petitioner 

in understanding how best to proceed. (Id.) Respondent filed his Rule 4(c) report on 

February 11, 2020,3recommending against compensation and outlining the reasons 

therein. 

Thereafter, I ordered petitioner to file an expert report to support her claim by no 

later than April 24, 2020. (ECF No. 36.) However, on March 9, 2020, petitioner 

indicated that she did not receive my order setting this deadline and a courtesy copy of 

the order was sent to petitioner, maintaining the April 24, 2020 deadline. (ECF No. 37.) 

On April 23, 2020, petitioner contacted my chambers, indicating that she was having a 

difficult time meeting her deadline due to the coronavirus outbreak and quarantine. 

Accordingly, I extended petitioner’s deadline to file an expert opinion to support her 

claim to August 7, 2020. (ECF No. 39.) 

Petitioner allowed this August 7, 2020 deadline to lapse without any filing and did 

not otherwise file any expert report. I held a status conference on August 26, 2020 to 

discuss the appropriate next steps with petitioner. (ECF No. 41.) Petitioner indicated 

she wished to proceed with a report from one of D.R.’s treating physicians, Dr. Guillory, 

and I set petitioner’s filing deadline at the end of November 2020. I specifically 

confirmed with petitioner that she agreed the November 30, 2020 deadline was 

reasonable in light of the Covid-19 pandemic and her current circumstances. I further 

explained that I had allowed petitioner a generous period of time to seek expert support, 

but this case cannot be allowed to remain pending indefinitely and stressed the 

importance of meeting deadlines. I cautioned that failure to meet the November 30, 

2020 order would result in an Order to Show Cause. Petitioner allowed this deadline to 

lapse without completing her filings.

3 The report was filed on January 31, 2020; however, the amended certificate of service was filed on 

February 11, 2020. 
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On December 4, 2020, an Order to Show Cause was issued that allowed

petitioner one final chance to file an expert opinion to support her claim. (ECF No. 42.) 

I explained that petitioner’s deadline of February 4, 2021 would be her last opportunity 

to file an expert opinion to support her claim and if one is not filed, petitioner’s claim will 

be involuntarily dismissed. (Id.) On January 12, 2021, petitioner contacted chambers 

via telephone and indicated that she anticipated submitting a letter from Dr. Guillory by 

the deadline. However, petitioner allowed the February 4, 2021 deadline to lapse 

without any filing and to date has not filed an expert report or otherwise contacted 

chambers. 

II. Discussion

In general, to receive compensation in the Vaccine Program, a petitioner must 

prove either (1) that the vaccinee suffered a “Table Injury” – i.e., an injury falling within 

the Vaccine Injury Table – corresponding to a covered vaccine, or (2) that the vaccinee

suffered an injury that was actually caused by a covered vaccine. See §§ 13(a)(1)(A) 

and 11(c)(1). Petitioner has not alleged any Table Injury. Nor does my review of the 

records reveal any such injury.

To satisfy her burden of proving causation in fact, petitioner must show 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 Health & Human Servs., 418 F.3d 

1274, 1278 (Fed. Cir. 2005). The Vaccine Act also limits compensation only to those 

cases that are supported by either medical records or the opinion of a competent 

physician. The Vaccine Act states with regard to a finding that petitioner can recover for 

his injury that: “The special master or court may not make such finding based on the 

claims of a petitioner alone, unsubstantiated by medical records or medical opinion.” 42 

U.S.C. § 300aa-13(a)(1). 

D.R.’s medical history is well summarized in respondent’s Rule 4 Report. Upon 

my review of the medical records filed in this case, I do not see where any of D.R.’s 

physicians attributed his condition to any of his vaccinations. This claim alleged that 

D.R.’s condition began prior to his August 21, 2015 HPV vaccination, but was 

aggravated by both that vaccination and an influenza vaccination administered October 

20, 2015. However, the medical records suggest that D.R.’s diagnosis is 

Spinocerebellar Ataxia Type 7 (SCA-7) which his physicians have noted to be a 

progressive genetic condition. Dr. Parnes, D.R.’s treating pediatric neurologist at the 

Pediatric Movement Disorders Clinic at Texas Children’s Hospital, explicitly opined on 

March 7, 2018 that “[D.R.]’s condition is related to a genetic variant that is known to 

cause SCA7, in the absence of any trigger.” (ECF No. 21, p. 234.) There is some 

indication in the records that a Sherry Durrett suspected D.R.’s vaccines to have 

contributed to his condition via heavy metal toxicity; however, Ms. Durrett is D.R.’s 
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chiropractor and that opinion is far outside her area of qualification and not credible.4

(ECF No. 19, pp. 293-300.) Presented with Ms. Durrett’s theory, Dr. Akbar, D.R.’s 

pediatric neurologist at The Houston Institute of Neurology for Kids, reiterated that 

D.R.’s SCA7 is genetic and that the etiology is otherwise unknown. (ECF No. 19, p. 

304.) Petitioner has represented that Dr. Guillory is willing to support vaccinecausation; however, she has not filed any report by him.5

 

Pursuant to Vaccine Rule 8(a), the special master “will determine the format for 

taking evidence and hearing argument based on the specific circumstances of each 

case and after consultation with the parties.” Vaccine Rule 8(d) expressly authorizes 

the special master to decide a case based on the written record without holding an 

evidentiary hearing.6In this case, the medical records do not contain preponderant 

evidence indicating that D.R.’s condition was vaccine-caused, aggravated, or in any 

way vaccine-related. Nor has petitioner filed any expert medical opinion to support her 

allegations.

Additionally, under Vaccine Rule 21(b), the special master may dismiss a petition 

for failure of the petitioner to prosecute or comply with any order of the special master. 

In this case, petitioner was given multiple opportunities to address the issues raised in 

my previous orders and in respondent’s Rule 4 Report responding to her allegations. 

Moreover, I have already provided petitioner a generous one-year period, since 

February 2020, within which to secure an expert opinion. Yet, petitioner has been 

unable to comply with the order to file an expert report and has, in fact, repeatedly failed 

during the pendency of this case to respond to the filing deadlines set by court orders. 

I am sensitive to the fact that petitioner previously indicated that she has had 

difficulty securing an expert report due to her own personal circumstances related to the 

Covid-19 pandemic. Notably, however, while these circumstances could justify a 

motion for extension of time, they do not excuse petitioner’s repeated disregard of her 

4 This opinion is outside of Ms. Durrett’s area of qualification in multiple respects. First and most basically, 

she is not a medical doctor. Nor does the record reflect that she has any qualification in neurology, 

genetics, or toxicology.

5 The medical records filed in this case do contain some records by Dr. Guillory, but these records relate 

only to treatment, consisting mainly of prescription slips, consent forms, receipts, and lab results. (ECF 

No. 20, pp. 13-33; ECF No. 19, pp. 322-25.) One record indicates Dr. Guillory’s opinion that D.R.’s 

condition, though progressive, is aggravated by environmental toxicity. (ECF No. 20, p. 33.) However, 

neither it nor any other record by Dr. Guillory expresses any causal opinion by Dr. Guillory as to vaccines. 

Moreover, standing alone this record lacks sufficient detail and substantiation to be credible. Apart from 

being an M.D., Dr. Guillory’s specific qualifications are not disclosed by the existing record.

6 Special masters “must determine that the record is comprehensive and fully developed before ruling on 

the record.” Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020) 

(citing Simanski v. Sec’y of Health & Human Servs., 671 F.3d 1368, 1385 (Fed. Cir. 2012); Jay v. Sec’y of 

Health & Human Servs., 998 F.2d 979, 983 (Fed. Cir. 1993.)); see also Vaccine Rule 8(d); Vaccine Rule 

3(b)(2). The parties must have a full and fair opportunity to present their case and develop a record 

sufficient for review. Id. Based on the above-described procedural history, I conclude that petitioner has 

had a full and fair opportunity to develop a record.
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deadlines. Moreover, petitioner has been allowed a generous period of time to seek out 

an expert report and I specifically confirmed with petitioner during our last status 

conference that she felt her deadline was reasonable. Additionally, I provided petitioner 

clear notice in my December 4, 2020 Order to Show Cause that her case was at risk for 

involuntary dismissal. She subsequently indicated to chambers on January 12, 2021, 

that she anticipated meeting her Order to Show Cause deadline.

III. Conclusion

This case is now DISMISSED both for failure to prosecute and for insufficient 

proof. The clerk of the court is directed to enter judgment in accordance with this 

decision.7

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

7 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.