# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 737V

Filed: October 15, 2018

Not to be Published

*************************************
RACHEL KNURA, as Personal * Representative of the Estate of *
KOLE KNURA, *

*
Petitioner, *

*

v. *

*

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

*

*************************************
Daniel H. Pfeifer, South Bend, IN, for petitioner.
Voris E. Johnson, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION 1

On June 2, 2017, petitioner filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. § 300aa

- 10

- 34 (2012), allegin g that hepatitis A, measles

- mumps

- rubella (“MMR”), Prevnar, and Varicella vaccines her son received on June 10, 2014 caused him acute disseminated encephalomyelitis (“ADEM”), epileptic encephalopathy, and metabolic or genetic

mediated epilepsy. Pet. at Pre amble, ¶¶ 7, 20, and 21.

1 Because this unpublished ruling on entitlement contains a reasoned expla nation for the special master’s action in this case, the special master intends to post this unpublished ruli ng on entitlement on the United States Court of Federal Claims’ website, in accordance with the E

- Gove rnment Act of 2002, 44 U.S.C.
§ 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This

means the ruling will be available to anyone with access to the Internet. Vaccine Rule 18(b) states
that all decisions of the special masters will be made available to the p ublic unless they contain trade

secrets or commercial or financial informatio n that is privileged and conf idential, or medical or similar

information whose disclosure would constitute a clearly unwarranted i nvasion of privacy. When such a ruling on entitlement is filed, petitioner has 14 days to identify and move t o redact such inf ormation prior

to the document’s disclosure. If the special master, upon review, agrees that the i dentified material fits

within the banned categories listed above, the special master shall r edact such material from public

access. Hepatitis A, measles

- mumps

rubella (“MMR”), Prevnar, and
Varicella vaccines; acute disseminated encephalomyelitis (“ADEM”); epileptic

encep halopathy; metabolic or genetic

- mediated epilepsy; no expert report; dismissal for failure to prosecute and to make a prima

facie case.2

This case is now DISMISSED for failure to prosecute and failure to obey the undersigned’s Order o f May 30, 2018 under Vaccine Rule 21(b)(1)

, and failure to prove a prima

facie case.

BACKGROUND

Petitioner filed medical records on June 2, 2017, the same day as when the petition was

filed.

On August 15, 2017, the undersigned issued an Order discussing numerous issues that arose from both the petition and the medical records.

On August 31, 2017 , the initial status conference was held where the undersigned and the parties discussed the issues described in the undersigned’s Order of August 15, 2017. During this status conference, petitioner assured the undersigned that petitioner’s son will under go exome testing and that when testing is completed, an expert opinion will be obtained from Dr. Christopher T. Jackman, a neurologist. In addition, petitioner said that if an expert opinion cannot be obtained, petitioner will move to withdraw. Petitione r was also in the process of obtaining her prenatal, labor, and delivery records.

The undersigned ordered petitioner to file a status report explaining how she would like to proceed with the case by December 21, 2017.

On December 19, 2017, petitioner f iled a status report and informal request for an extension of time. In the status report, petitioner stated that the exome testing results for petitioner’s son were normal. However, the exome testing for the parents has not been completed. Therefore, pe titioner requested for an extension of time in order to obtain records and to have the records reviewed by Dr. Jackman.

On December 20, 2017, the undersigned granted petitioner’s informal request for an extension of time. The undersigned ordered petitio ner, by May 30, 2018, to file one of the following: (1) another status report concerning the progress of the case; (2) a report from Dr. Jackman, his CV, and any medical literature cited in the report; or (3) a motion to dismiss.

Petitioner filed additional medical records on January 31, 2018. After reviewing the additional medical records, the undersigned noted that a certified genetics counselor, Melissa A. Gibbons, met with petitioner, her husband, and her son to discuss Whole Exome Sequencing as the next step in their genetic workup. The lab to be used was GeneDX.

The undersigned issued an order on February 9, 2018, ordering petitioner to obtain and subsequently file the Whole Exome Sequencing results from GeneDX by Februar y 23, 2018. The undersigned again referred petitioner to the issues with the case the undersigned set out in the Order of August 15, 2017 that were also discussed in the initial status conference. On3

February 23, 2018, petitioner filed the GeneDX records

.

Petitioner filed a status report on May 30, 2018 notifying the undersigned that petitioner’s
son, the vaccinee, passed away on May 24, 2018. In addition, petitioner stated that after review of all medical records, Dr. Jackman could not provide the exp ert opinion to support that the vaccinations caused petitioner’s son’s injuries. Petitioner asked for time to look for substitute

counsel and in t he event that petitioner decided not to find substitute counsel, p etitioner’s current

counsel would file a mo tion to dismiss the case.

On May 30, 2018, the u ndersigned issued an Order sua sponte for the Clerk of Court to change the case caption. The undersigned also ordered petitioner, by July 30, 2018, to file: (1) the vaccinee’s death certificate; (2) the au topsy report, if any; ( 3) the most recent medical records; and (4) a motion to substitute counsel or a motion to dismiss.

On July 30, 3018, petitioner’s counsel filed a motion to withdraw as attorney

. Petitioner’s counsel explained that his office commu nicated with petitioner on July 27, 2018 and again tried to contact her on July 30, 2018 regarding whether s he wanted to seek new representation or to dismiss the case. As of July 30, 2018, counsel had not receive d a response from petitioner. Thus, petitioner’s counsel s ought to withdraw as counsel for petitioner.

DISCUSSION

First, under Vaccine Rule 21(b)(1), the undersigned can dismiss a petition based on petitioner’s fa ilure to prosecute and/or failure to obey orders. Petitioner failed to prosecute and failed to obey the undersigned’s Order of May 30, 2018.

Second, 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 in jury.” 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 o f a logical sequence of cause and effect showing that the vaccination was 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 1278.4

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 su fficient to prove causation in fact. Id. at 1148.

Petitioner must show not only that but for the hepa titis A, MMR, Prevnar , and Varicella vaccines, her son would not have ADEM, epileptic encephalopathy, and metabolic or genetic

mediated epilepsy, but also that those vaccines were substantial factors in causing his injuries. Shyface v. Sec’y of HHS , 165 F.3d 1344, 1352 (Fed. Cir. 1999).

The Vaccine Act, 42 U.S.C. § 300aa

- 13(a)(1), prohibits the undersigned from ruling for petitioner based solely on her allegations unsubstantiated by medical records or medical opinion.

Petitioner has not filed any expert medical reports supp orting her allegatio ns. In fact, the neurologist petitioner hired, after thoroughly reviewing petitioner’s son’s records, concluded that he cannot support petitioner’s allegations of vaccine causation.

The undersigned DISMISSES this petition for failure to prosecute and failure to obey the

above

- mentioned Order under Vaccine Rule 21(b)(1), and for failure to make a prima facie case.

CONCLUSION

This case is now DISMISSED . In the absence of a motion for review filed pursuant to RCFC Appendix B, the Cler k of Court is directed to enter judgment herewith. 2

IT IS SO ORDERED.

Dated: October 15, 2018 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.