THOMAS L. GOWEN, Special Master.
On May 4, 2014, Reta Erxleben ("petitioner") filed a petition pursuant to the National Vaccine Injury Compensation Program.
On May 4, 2014, petitioner filed her claim in the Vaccine Program. During the initial status conference on June 9, 2014, the undersigned directed petitioner to file outstanding medical records and to subsequently file an expert report opining that the flu vaccine was the cause in fact of petitioner's condition, under
During a status conference on January 6, 2016, the undersigned ordered petitioner to have her expert review the additional medical records and to file another report no later than March 7, 2016. Order, filed January 6, 2016 (ECF No. 36). The undersigned scheduled an entitlement hearing to take place on March 9, 2017 and March 10, 2017. Hearing Order, filed February 9, 2016 (ECF No. 38).
At petitioner's request, the undersigned held a status conference on November 22, 2016. Order, filed November 22, 2016 (ECF No. 44). Petitioner reported that her expert was no longer available to support the claim.
Petitioner then filed a report from Dr. Marcel Kinsbourne. Petitioner's Exhibit 75, filed March 28, 2017 (ECF No. 49). In his report, Dr. Kinsbourne offered a diagnosis of paradoxical vocal cord motion disorder ("PVCM").
On March 30, 2017, the undersigned held a status conference with petitioner, petitioner's counsel, and respondent's counsel. Order to Show Cause, filed March 31, 2017 (ECF No. 50). The undersigned stated that he did not believe that petitioner will be able to demonstrate that her condition was caused by the flu vaccine. While petitioner's condition developed in close temporal proximity to the vaccine, timing alone is not sufficient to show entitlement. To prevail, petitioner would need to submit a medical opinion or medical literature supporting that the vaccine actually caused her condition. The undersigned that in 2015, petitioner filed two reports from an expert who then withdrew from the case. Petitioner's counsel diligently attempted to secure a supportive opinion from another expert. Petitioner's counsel was only able to secure an opinion from Dr. Kinsbourne, who wrote there was no evidence that PVCM can be caused by a vaccine or is immune-mediated. Petitioner's counsel had also indicated that he would seek leave to withdraw from the case. Following this discussion, petitioner expressed a desire to attempt to seek an expert on her own. The undersigned granted petitioner an additional thirty days, until May 1, 2017, to attempt to locate an expert and supportive medical literature. The undersigned advised petitioner that if an expert is not located in that time, her case would be dismissed for insufficient proof.
On April 24, 2017, petitioner filed additional records of treatment by an otolaryngologist and a primary care physician. ECF No. 51. On April 26, 2017, petitioner filed a response, which she wrote herself, to the Order to Show Cause. ECF No. 52. The response addressed one aspect of respondent's Rule 4(c) report. It also detailed petitioner's health before the flu vaccine, her allergies, her research on the flu vaccine she received, and her theories of how the flu vaccine might have caused her condition, and her current condition. To date, petitioner has not filed an expert report or any medical literature in support of her claim, or indicate that she has made any progress towards doing so.
To receive compensation under the Vaccine Act, a petitioner must prove either that (1) she suffered a "Table injury" — i.e., she suffered a specified injury within a specified period of time following the administration of a specified vaccine listed on the Vaccine Injury Table or (2) that her injuries were actually caused by a vaccine listed on the Table. §§ 300aa-13(a)(1)(A); §§ 300aa-11(c)(1). The records do not suggest, and petitioner does not contend, that she suffered a Table injury. Thus, she is necessarily pursuing a causation-in-fact claim. She has the burden of presenting (1) a medical theory; (2) a logical sequence of cause and effect; and (3) a medically acceptable temporal relationship between the vaccination and the injury.
Under the Vaccine Act, a petitioner may not be found eligible to receive compensation based solely on her own claims. § 300aa-13(a)(1). Rather, the petition must be supported by either medical records or by medical opinion. § 300aa-13(a)(1).
In this case, because the medical records do not support petitioner's claim, she must file a medical opinion — either in the form of an expert report or medical literature. Petitioner was first informed of this burden during the initial status conference on June 9, 2014. Petitioner's injury is not often, if ever, seen in the Program. Petitioner did initially obtain an expert, who withdraw from the case in November 2016. For the next four months, petitioner's counsel — who has significant experience in the Vaccine Program — diligently attempted to find another expert. Counsel managed to obtain an opinion from Dr. Kinsbourne, an expert neurologist who has testified in support of other petitioners' claims in the Vaccine Program and is aware of its requirements. However, Dr. Kinsbourne ultimately could not offer an opinion in support of petitioner's claim. After fully reviewing the record and holding a status conference with petitioner, I granted her an additional thirty days to pursue a supportive expert opinion and medical literature. To date, petitioner has not filed an expert report or given any indication that she will be able to do so. Instead of filing the required medical opinion, petitioner filed her own theory of the case. I sympathize with petitioner and appreciate the detailed history she has provided. However, it is not sufficient to establish causation. It is not from a medical expert, which in the case of this very unusual injury, would be particularly necessary. In fact, the most recent expert report that petitioner's counsel was able to obtain found no evidence of a causal relationship between the vaccine and petitioner's condition. Petitioner's self-written response details the chronology, but does not and could not address the first two