Fed Ex 8136 4199 5996

, 

Petitioner, 

v. 

SECRETARY OF HEALTH 

AND HUMAN SERVICES, 

Respondent. 

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

Hanane M. Seid, pro se. 

* 

* * * * * 

* 

* 

No. 17-604V 

Special Master Christian J. Moran 

Filed: March 4, 2019 

Robert P. Coleman III, United States Dep't of Justice, Washington, DC, for 

respondent. 

DECISION DISMISSING PETITION1 

Ms. Seid filed her petition for compensation under the National Childhood 

Vaccine Injury Act, 42 U.S.C. §300aa-10 through 34, on May 5, 2017. Ms. Seid 

claimed that she suffered from unspecified injuries following her receipt of a flu 

vaccine on September 21, 2013. Throughout the pendency of this proceeding, Ms. 

Seid has not complied with the undersigned's orders to prosecute her case by 

presenting evidence that favors her claims of causation. On November 28, 2018, 

the undersigned issued an order for Ms. Seid to show cause for why her claim 

should not be dismissed for her failure to prosecute the case and comply with the 

undersigned's orders. In response, Ms. Seid moved for a ruling on the record on 

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. 
January 23, 2019. Ms. Seid argued that the evidence in the record "should support 

a ruling in favor of the petitioner." For the reasons explained below, the 

undersigned disagrees. 

Brief Factual Summary 

The facts smrounding Ms. Seid's condition were not well-developed by the 

petitioner and must be gleaned only from her affidavit and one set of medical 

records, only 32 pages in length. 

Ms. Seid was 41 years old when she received an influenza vaccine on 

September 21, 2013. Immunization Record at 2.2 By all accounts in the record, 

Ms. Seid was healthy following the vaccination until late April 2014. Kaiser 

Foundation Hospitals Medical Records ("Medical Records") at 14. She presented 

to the emergency room on May 1, 2014, with one week of diarrhea, abdominal 

pain, nausea, and headache. Id. Her physicians attributed her condition to viral 

gastroenteritis. Id. at 20. On May 4, 2014, Ms. Seid returned to urgent care with 

worsened symptoms including abdominal pain and tactile fevers and was then 

found to have acute pancreatitis. Id. Ms. Seid returned home against medical 

advice that same day. Id. at 21. 

On May 8, 2014, Ms. Seid presented again to the local emergency 

department with reports of numbness and weakness. Id. at 21. The weakness 

developed into an ascending paralysis and Ms. Seid was eventually intubated to 

protect her airway. Id. By the end of May 2014, Ms. Seid's movement was 

limited to her neck and eyelids. Id. at 29. 

The early medical records repeatedly identify GBS as the most likely cause 

of Ms. Seid's condition. Id. at 13, 14, 16, 20, 21, 22, 24, 29, 31. Ms. Seid's 

physicians repeatedly found it noteworthy that the onset of her paralysis 

immediately followed her viral gastritis and pancreatitis. Id. at 6, 7, 21, 22, 23, 26. 

And in fact, her treating physicians causally attributed the onset of the neurological 

disease to the infection, noting that her condition was most consistent with "GBS 

or AIDP following antecedent infectious etiology." Id. at 22. See also id. at 32 

(noting that her antecedent dianhea was supportive of a GBS diagnosis). Although 

GBS was identified as the most likely explanation of Ms. Seid's condition, the 

medical records make certain that GBS was never conclusively identified as the 

2 Ms. Seid's exhibits are not numbered. Accordingly, they are described by their 

contents. 

2 
cause, but instead as the most likely explanation in the differential diagnosis. Id. at 

13, 14, 16, 20, 21, 22, 24, 29, 31. Because it was the physicians' primary concern, 

Ms. Seid was transfe1Ted to another facility to begin IVIG and plasmapheresis 

treatment for possible GBS. Id. at 22. 

Subsequent EMG and MRI testing in June 2014 resulted in physicians 

concluding that Ms. Seid was, instead of GBS, more likely suffering from anterior 

horn cell disease. 3 Id. at 34-39. The cause of Ms. Seid's condition was never 

confirmed, despite follow-up testing by the CDC and the Columbia University 

Viral Detection Lab, which "returned negative for further clarification of exact 

etiology." Id. at 34. However, the physicians ultimately concluded that the most 

likely explanation was that her condition was the result of an "unknown polio-like 

virus." Id. at 34, 38. 

The most recent records filed by Ms. Seid do not illuminate her current 

condition, but do indicate that as of the summer of 2014, she was undergoing 

rehabilitation with an uncertain prognosis. Id. at 37-38. In her petition, she notes 

that "she is unable to stand with the support of a walker and remains unable to 

fully function in her everyday life." Petition at ii 7. 

Procedural History 

Ms. Seid, prose, filed her petition for compensation on May 5, 2017. She 

alleged that the flu vaccine she received on September 21, 2013 caused her to 

suffer from the neurological condition that manifested in May 2014. 

The procedural history of Ms. Seid's case was detailed in the order to show 

cause issued on November 28, 2018 and is restated here. 

During the initial status conference held on June 8, 2017, the undersigned 

communicated to the petitioner that she would need to obtain an expert report. 

Order, issued June 12, 2017. This was because, in the undersigned's experience in 

the Vaccine Program, the long delay between the vaccination date and the onset of 

her condition raised serious questions about petitioner's claim of causation, 

questions that could only be addressed by the petitioner providing expert opinion 

from a qualified individual. The undersigned ordered the petitioner to begin the 

process of identifying a qualified expert and to file a status report on her progress 

by Monday, July 24, 2017. 

3 The anterior horn is the section of the spinal cord containing motor neurons. 

3 
Ms. Seid did not comply with the July 24, 2017 deadline and on August 1, 

201 7, the undersigned ordered her to file a status report by Thursday, August 31, 

2017. Order, issued Aug. 1, 2017. The petitioner was warned that her failure to 

respond may result in an order to show cause. 

On August 30, 2017, Ms. Seid notified the court that she was now being 

represented by attorney Carl Kadlic, though she noted that he was still in the 

process of applying for admission to the Court of Federal Claims' Bar. The 

undersigned noted that until Mr. Kadlic was admitted to practice in this court, he 

would not be permitted to file a notice of appearance in Ms. Seid's vaccine 

petition. Order, issued Sep. 5, 2017. 

On that same date, Ms. Seid filed a status report stating that she had obtained 

the services of Dr. Jonathan Rutchik to provide an opinion on causation. Ms. Seid 

stated that due to the amount of records involved, the preparation of the report 

would take "some time" and requested that a status conference be scheduled at 

least 90 days from the date of the status report. Pet'r's Rep., filed Aug. 30, 2017. 

A status conference was set for December 14, 2017. Order, issued Sep. 20, 2017. 

On September 27, 2017, the undersigned issued proposed instructions for 

any expert opinion provided in Ms. Seid's case. The order provided that the 

instructions would become final if no objections or comments were made prior to 

October 10, 2017. Neither paity objected or commented on the proposed 

instructions. 

A status conference was held on January 8, 2018. During the status 

conference, the petitioner stated that her previously retained expert, Dr. Rutchik, 

would not be able to provide an opinion due to the petitioner's financial 

constraints. Order, issued Jan. 9, 2018. The petitioner requested additional time to 

secure another expert opinion. The petitioner was ordered to file a status report by 

Tuesday, March 13, 2018, with an update on her efforts to secure another expert 

opinion. The petitioner was again reminded to determine whether she would like 

to continue pro se or have an attorney enter an appearance on her behalf. 

On March 19, 2018, Ms. Seid filed a status report stating, again, that she 

would be unable to retain Dr. Rutchik. The petitioner requested that a deadline be 

set for her to file a status report in 90 days so that she could have sufficient time to 

"either retain an expe1t or decide if this case is feasible to pursue." 

4 
The next day, the undersigned ordered the petitioner to file a status report by 

June 20, 2018, with an update on her progress in obtaining an expert witness. 

Order, issued Mar. 20, 2018. Ms. Seid was also provided additional information 

on her various options for exiting the vaccine program. 

On June 18, 2018, Ms. Seid filed a status report stating that she was 

"thinking to withdraw the case due to the costs associated with an expert report." 

The petitioner requested additional time to decide how to proceed. 

On June 25, 2018, the undersigned ordered the petitioner to file a status 

report on her next steps if she had not exited the Vaccine Program by August 8, 

2018. 

On August 13, 2018, Ms. Seid filed a status report stating that she was "still 

working on the options of exiting the vaccine program" and requesting "at least" 

three months to make her decision. On August 21, 2018, the undersigned set a 

status conference for September 4, 2018, to discuss the case with the petitioner. 

During the status conference, Ms. Seid stated that she anticipated 

withdrawing from the Program but stated that she may still attempt to file an expert 

report. Order, issued Sep. 5, 2018. The undersigned noted that it had been nearly 

15 months since Ms. Seid first stated that she was in the process of obtaining an 

expert report and that if Ms. Seid was going to pursue her petition by filing an 

expert report, she would need to actually do so. Otherwise, she should withdraw 

her petition. The undersigned ordered Ms. Seid to file her expert report by October 

4, 2018. Ms. Seid was warned that a failure to comply with this deadline would 

result in an order to show cause for why Ms. Seid's case should not be dismissed. 

Because Ms. Seid failed to comply with the order to file an expert report, the 

undersigned issued an order to show cause for why Ms. Seid's petition should not 

be dismissed. Order, issued Nov. 28, 2018. In the order, petitioner was warned 

that she must comply with orders to prosecute her case or face dismissal. Id. at 3 

(citing Padmanabhan v. Sec'y of Health & Human Servs., 638 Fed. App'x 1013 

(Fed. Cir. 2016); Sapharas v. Sec'y of Health & Human Servs., 35 Fed. Cl. 503 

(1996); Tsekouras v. Sec'y of Health & Human Servs., 26 Cl. Ct. 439 (1992), 

affd, 991 F.2d 819 (Fed. Cir. 1993) (table); Vaccine Rule 21(c)). 

The day before Ms. Seid's show of cause was due, she filed a brief motion 

requesting that a ruling be made on the record. Pet'r's Mot., filed Jan. 23, 2019. 

In her motion, she noted that "even though the petitioner could not be able to 

5 
provide the medical expert due to a financial constraint," the record as submitted 

"should support a ruling in favor of the petitioner." Id. 

On February 12, 2019, the Secretary filed a brief response. In his response, 

the Secretary argued that preponderant evidence did not support a conclusion that 

the vaccination caused Ms. Seid's condition and that, accordingly, the petition 

should be dismissed. Resp't's Resp., filed Feb. 12, 2019, at 3-6. 

Analysis and Conclusion 

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). 

Ms. Seid's petition contains no evidence from which the undersigned can 

conclude that her condition is the result of the vaccination she received on 

September 21, 2013. The only relationship in the record between the vaccination 

and the onset of her condition is the fact that her condition followed the 

vaccination. "Temporal association is not sufficient, however, to establish 

causation in fact." Grant v. Sec'y of Health & Human Servs., 956 F.2d 1144, 1148 

(Fed. Cir. 1992). Even more, the temporal association between the vaccination and 

the onset of Ms. Seid's condition was hardly proximate. Thirty-two weeks passed 

between the vaccination and the onset of her paralysis. In the undersigned's 

experience with similar disorders, this timeframe is inconsistent with a finding of 

causation. And indeed, the physicians treating Ms. Seid never even considered her 

vaccination as a possible cause of the disorder. 

The physicians, however, did identify another possible cause, a viral 

infection. In fact, the physicians stated with some certainty that a viral infection 

was what caused Ms. Seid's illness. See Medical Records at 38 (concluding, in 

one of the most recent medical records, that the cause of Ms. Seid's anterior horn 

cell disease was "likely from unknown polio-like viral etiology"). The 

undersigned sees no reason to doubt the conclusion of Ms. Seid's physicians. See 

Capizzano v. Sec'y of Health & Human Servs., 440 F.3d 1317, 1326 (Fed. Cir. 

2006) (holding that special masters must consider the view of treating physicians). 

6 
Ms. Seid's case is tragic. The medical records show that she was a young 

and healthy woman preparing for her honeymoon when she was struck down by an 

illness that has, perhaps permanently, changed her life and the lives of her loved 

ones. The uncertainty regarding how Ms. Seid's illness came to be can only 

amplify their frustration. However, when Congress established the Vaccine Act, it 

directed special masters to only award compensation from the Vaccine Trust Fund 

when petitioners provide preponderant evidence of a vaccine injury. Ms. Seid has 

not done so here despite having been provided a full and fair opportunity to present 

her case. Accordingly, the undersigned must deny her petition for compensation. 

The Clerk's Office is instructed to enter judgment in accord with this 

decision. 

IT IS SO ORDERED. 

7 

oran 

Special Master