In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

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

CONCEPTION PLEVAK, *

* No. 15-1119V

Petitioner, * Special Master Christian J. Moran

*

v. *

* Filed: February 28, 2019

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

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

Jerome A. Konkel, Samster, Konkel & Safran, S.C., Milwaukee, WI for petitioner; 

Lisa A. Watts, United States Dep’t of Justice, Washington, DC, for respondent.

DECISION DENYING COMPENSATION1

Ms. Conception Plevak filed a claim for compensation under the National 

Childhood Vaccine Injury Act of 1986 on October 5, 2015. In her petition, she 

claimed that influenza vaccinations on October 27, 2012, and October 30, 2013, 

caused her to develop dysautonomia. Petition at ¶ 16. Since the beginning of her 

case, Ms. Plevak has been represented by Mr. Jerome Konkel. In the years since 

the petition was filed, Ms. Plevak worked to develop additional evidence in 

support of her claim. However, these efforts were largely unsuccessful. On 

February 14, 2019, Ms. Plevak moved to dismiss her petition on the grounds that 

“an investigation of the facts and science supporting her case demonstrated to 

petitioner that she will be unable to prove that she is entitled to compensation.” 

 

1 Because this ruling contains a reasoned explanation for the action in this case, the 

undersigned is required to post it 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). This means the ruling will be 

available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), 

petitioners have 14 days to identify and move to redact medical or other information, the

disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the 

undersigned agrees that the identified material fits within this definition, the undersigned will 

redact such material before posting the ruling.
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Because the undersigned agrees with Ms. Plevak’s assessment that she cannot, 

based on the facts of her case, prevail on her claim of a vaccine injury, her motion 

is GRANTED and her claim is DISMISSED for insufficient proof pursuant to 

Vaccine Rule 8(d). 

Factual History

Respondent’s Rule 4(c) report, filed April 18, 2016, aptly summarizes the 

uncontroverted facts of this case. Ms. Plevak was 50 years old at the time she 

received a flu vaccination on October 7, 2012. Exhibit 2 at 2. Three weeks after 

the October 7 vaccination, Ms. Plevak presented to her primary care physician with 

complaints of headache for the prior two weeks. Exhibit 3 at 2-3. Ms. Plevak also 

self-reported high blood pressure readings. However, the examination did not 

reveal any abnormalities, including a finding of normal blood pressure. Id.

Ms. Plevak visited the emergency department later that same day, 

complaining of a worsening headache. Exhibit 5 at 12. The only abnormal finding 

upon examination, which included a head CT scan, was high blood pressure. Id. at 

13. Ms. Plevak was discharged shortly after she arrived. Id. at 16. An email from 

her treating physician attributed her condition to elevated blood pressure, which 

needed to be controlled and closely monitored. Exhibit 3 at 6.

Additional tests in the following weeks returned normal results. Exhibit 4 at 

43, 45-46. She was ultimately prescribed medication for high blood pressure and 

was not seen again for months. Id.

At her next visit with a physician, which was a non-urgent wellness 

examination, Ms. Plevak reported that she had been suffering from fatigue, 

moodiness, and sadness over the course of the previous several weeks. Exhibit 4 at 

24. Her tests results were normal aside from a finding of high cholesterol and she 

was prescribed an anti-depressant. Id. at 22-24. The anti-depressant had positive 

results. Id. at 41.

Ms. Plevak was administered another annual flu shot on October 30, 2013. 

Exhibit 2 at 1. Two weeks after the vaccination, she was admitted to the hospital 

for high blood pressure and headaches. Exhibit 7 at 2-151. It was noted that she 

was not taking blood pressure medication at that time. Id. at 13. Multiple tests 

again returned normal results and she was discharged with prescriptions for her 

high blood pressure and headaches. Id. at 18-20. 
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Ms. Plevak returned to the emergency department two months later, on 

December 30, 2013. At that visit, she presented with fluctuating blood pressure, 

headache, neck pain, swelling, and dizziness. Exhibit 9 at 2-37. Again, Ms. 

Plevak had an unremarkable examination aside from high blood pressure and was 

released shortly after she arrived. Id. at 3.

Ms. Plevak had multiple visits with Dr. Rose Dotson in 2014. Exhibit 10 at 

2-59. Dr. Dotson diagnosed Ms. Plevak with, among other things, mild 

dysautonomia that did not appear congruent with Ms. Plevak’s symptoms. Id. Dr. 

Dotson also appeared to suggest that the dysautonomia she did experience may be 

attributable to her medication. Id. Dr. Dotson suggested that Ms. Plevak continue 

with her current medication regimen and seek additional treatment for her 

hypertension. Id. at 58.

Procedural History 

Ms. Plevak filed her petition for compensation on October 5, 2015. On 

March 3, 2016, petitioner filed a statement confirming that the documentary record 

was sufficiently complete for the Secretary’s review of the case. The Secretary 

then provided his position, stating that Ms. Plevak was not entitled to 

compensation under the Act. Resp’t’s Rep., filed Apr. 18, 2016, at 6-8. In his 

report, the Secretary noted that Ms. Plevak’s treating physicians associated any 

dysautonomia symptoms she did have to causes other than the vaccination and that 

there was no medical opinion in the record that associated her dysautonomia to 

vaccination. Id. at 7.

During the Rule 5 status conference, petitioner stated that she had retained 

an expert neurologist and would be filing an expert report associating her condition 

to the vaccinations. Order, issued Apr. 27, 2016. Multiple enlargements of time 

were requested and granted for the filing of the expert report and petitioner 

ultimately filed the report, by Dr. David Axelrod, on October 25, 2016. See

exhibit 16. Dr. Axelrod’s report started off by stating that he was not an expert in 

dysautonomia and that he was assuming that Ms. Plevak suffered from 

dysautonomia and that the dysautonomia started after her the first vaccination and 

then relapsed shortly after the second. Id. at 1. Dr. Axelrod then continued to 

opine that studies had associated dysautonomia to vaccination and that, as a result, 

he could conclude that, more likely than not, Ms. Plevak’s dysautonomia was the 

result of her vaccinations.
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The Secretary filed a rebuttal report from Dr. Daniel Feinberg, also after 

multiple enlargements of time, on March 10, 2017. See exhibit A. In his report, 

Dr. Feinberg opined that Dr. Axelrod’s report was incorrect in its conclusion since 

there was no scientific basis for the premise that dysautonomia was causally 

related to influenza vaccination. Id. at 4. Furthermore, Dr. Feinberg noted that Dr. 

Dotson’s assessment of Ms. Plevak was not consistent with a conclusion that she 

suffered from anything more than hypertension and thus, Dr. Axelrod’s assumption 

that she suffered from dysautonomia was in error. Id. 

Because of the latent ambiguity in Dr. Dotson’s records and the importance 

these records appeared to play in both experts’ reports, the undersigned encouraged 

Ms. Plevak to contact Dr. Dotson to seek clarification regarding her evaluation of 

Ms. Plevak’s putative dysautonomia. Order, issued June 15, 2017. In status 

reports filed on August 14, 2017, and August 28, 2017, petitioner reported having 

difficulty obtaining cooperation from Dr. Dotson. Petitioner stated that she 

considered issuing a subpoena for Dr. Dotson’s testimony, but noted that 

Wisconsin law created privileges that treating physicians could use to avoid 

compelled testimony. 

In a status conference held on September 7, 2017, petitioner reported that, 

considering the difficulty she had obtaining cooperation from Dr. Dotson, she had 

begun the process of obtaining the cooperation of a consulting neurologist that 

could provide an expert report on Ms. Plevak’s diagnosis. Order, issued Sept. 7, 

2017. 

In a status report filed on October 10, 2017, petitioner stated that she had 

retained Dr. Paul Nausieda to examine Ms. Plevak and provide an expert opinion 

on her condition. However, during a status conference held on January 4, 2018, 

Ms. Plevak reported that she decided to not proceed with Dr. Nausieda for 

financial reasons and that she had consulted with another expert witness that 

suspected Ms. Plevak suffered from antiphospholipid syndrome. Petitioner stated 

that 12 weeks was needed to perform additional testing to confirm the diagnosis. 

Three months later, petitioner filed a status report stating that Ms. Plevak’s

new neurologist, Dr. Chelimsky, now had a working diagnosis of vagus nerve 

dysautonomia. Pet’r’s Rep., filed Apr. 1, 2018. Ms. Plevak’s status report further 

communicated that her attorney had made several attempts to contact Dr. Chelimsky 

to obtain his opinion on whether Ms. Plevak suffered from dysautonomia. However, 

these efforts had so far been unsuccessful. Ms. Plevak requested an additional 30-
5

60 days to obtain the report informally before considering whether it would be 

appropriate to compel his testimony by subpoena.

Throughout the spring and fall of 2018, Ms. Plevak continued to report that 

she had no success getting Dr. Chelimsky to cooperate with her attorney. See 

generally ECF nos. 54-58. Based on the representations made by Ms. Plevak’s 

attorney, his efforts to contact Dr. Chelimsky and his reticence to subpoena his 

testimony appeared reasonable. Ultimately, on October 18, 2018, Ms. Plevak moved 

for an award of interim fees and costs and on the next day Mr. Konkel moved to 

withdraw as counsel, citing “a disagreement as to the further handling of the course 

of the pending petition.” Pet’r’s Mot., filed Oct. 19, 2018, at 1. The undersigned 

ordered additional briefing on the issue of fees and costs and after supplemental 

briefs were issued, awarded petitioner the vast majority of her requested total. 

Decision, issued Jan. 28, 2019, 2019 WL ____. 

However, the undersigned held concerns about Mr. Konkel’s withdrawal from 

the case given its procedural posture and the appearance that Ms. Plevak was 

interested in continuing the petition. Accordingly, a status conference was held on 

February 14, 2019, to discuss Mr. Konkel’s withdrawal and the next steps for Ms. 

Plevak. During the status conference, petitioner communicated that she had finally 

obtained some information from Dr. Chelimsky, but that it was unhelpful to her case. 

Furthermore, petitioner stated that she had sought out a second opinion from another 

attorney who agreed with Mr. Konkel’s assessment that a dismissal was appropriate. 

Based on these representations, Ms. Plevak decided to no longer pursue her case. 

Shortly after the status conference, she moved for a decision dismissing the petition. 

Analysis

 

Petitioners are required to establish their cases by a preponderance of the 

evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence 

standard requires a “trier of fact to believe that the existence of a fact is more 

probable than its nonexistence before [he] may find in favor of the party who has 

the burden to persuade the judge of the fact’s existence.” Moberly v. Sec’y of 

Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations 

omitted). 

The facts of Ms. Plevak’s case do not allow the undersigned to find that the 

evidence preponderates in favor of Ms. Plevak’s claim that her vaccinations caused 

her to develop dysautonomia or any related conditions. Ms. Plevak’s own treating 

physicians expressed substantial uncertainty about the nature of Ms. Plevak’s 
6

disorder, with most appearing to ascribe it to hypertension, not an underlying 

neurological disorder. Furthermore, Ms. Plevak has failed to provide persuasive 

evidence supporting her claim that flu vaccinations can cause dysautonomia and, 

more importantly, that it did cause her putative dysautonomia.

Conclusion

While the undersigned held concerns that Ms. Plevak may have left stones 

unturned through the years of her petition due to the non-cooperation by her 

treating physicians, Ms. Plevak’s most recent representations indicate that those 

physicians, or at least some of them, were finally cooperative. Unfortunately, they 

were unable to provide answers that advanced Ms. Plevak’s claim of a vaccine 

injury. Furthermore, assessments by independent attorneys indicated to Ms. 

Plevak that Mr. Konkel had been diligent and competent in his efforts to prosecute 

her case.

For the aforementioned reasons, the undersigned finds that Ms. Plevak has 

been provided a full and fair opportunity to present her case of a vaccine injury. 

The evidence entered by Ms. Plevak is not sufficient to meet her statutory burden 

for proving a compensable vaccine injury. Accordingly, Ms. Plevak’s petition is 

DISMISSED pursuant to Vaccine Rule 8(d).

IT IS SO ORDERED. 

s/Christian J. Moran 

Christian J. Moran 

 Special Master