In the Um'ted States Court of Federal Claiitts
OFFICE OF SPECIAL MASTERS `
No. 12-84V
Filed: May 30, 2014

SHARON E. RICARD, *
* Special l\/laster Gowen
Petitioner, *
*
v, * Dismissal Decision; Failure to
* Produce Expert Reports; Order to
SECRETARY OF HEALTH * Show Cause; Tetanus, Dipthei'ia,
AND HUl\/IAN SERVICES, "‘ and Pertussis (Tdap) Vaccine;
’*‘ lnfluenza (Flu) Vaccine; Disfiguriiig
Respondent. * Lunip on Upper Arm.

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Sharon E. Ricard, pro se, Antioch, CA.
Ryan Pyles_, United States Dept. of Justice, Washington, D.C., counsel for respondent.

i)iicisioi\i‘

On Febi'uary 6, 20l2, Ms. Ricai'd (petitioner) filed a petition, pro se, pursuant to the
National Vaccine injury Compensation Program.z l\/[s. Ricard alleged that she suffered from a
dist`iguring lump on her upper left arm as a result of a Tetanus, Diptheria, and Pertussis ("Tdap")
vaccination she received on l\/Iay 21, 2010, Petitioii ("Pet.") at l. The information in the record
does not show entitlement to an award under the Act, For the reasons that follow, this case is

dismissed for insufficient proof.

' Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of F ederal Claims‘
website, in accordance with the E-Governmeiit Act of 2002, Pub. L. No. 107-347, § 205, l 16
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with
Vaccine Rule l8(b), a party has 14 days to identify and move to redact medical or other
inforination, that satisfies the criteria in § 300aa-l2(d)(4)(B). Furthei', consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. Iif, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
such material will be redacted fi'oni public access

2 T he National Vaccine injury Coinpensation Program is set forth in Part 2 of the National
Childhood Vaccine injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as aineiided,

42 U.S.C. §§ 300aa-l to -34 (20()6) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.

l

I. Factual Background

l\/ls. Ricard was born on December 31, l96l. Pet. Ex. 6 at 3. She received a Tdap
vaccination on May 21, 2010, and a flu vaccine on October 13, 2010.3 Pet. Ex. 3 at 1; Pet. Ex. 8
at l; Pet. Ex. 7a at 1.4 lt is unclear, from the medical records that have been filed, whether

petitioner was vaccinated in her right or her left arm.

According to a document authored by petitioner and filed as Exhibit 1, she received the
October 13, 2010 flu shot in her left arm and subsequently "experience[d] some discomfort, with
soreness, head ache, fever, and redness with a slight bump, at first, for a few days." Pet. Ex. 1 at
1-2. By "the end of December 2010," petitioner noticed a "small to medium bump" under her

sl35 Fed. Cl. 503 
(1996);
Tsei»;ouras v_ See’v ofl-lealth & Human Servs., 
26 Cl. Ct. 439 
(1992), a@, 
991 F.2d 819 
(Fed.
Cir. 1993) (table); Vaccine Rule 21(c); see also Claiicle E. Atkins Enters.. lnc. v. United States,
889 F.2d 1180
, 1183 (Fed. Cir. l990)(affirming dismissal of case for failure to prosecute for
counsel’s failure to submit pre-trial memorandum); Adkins v. United States, 
816 F.2d 1580
,
1583 (Fed. Cir. 1987) (affirrning dismissal of cases for failure of party to respond to discovery
requests). Ms. Ricard has failed to obtain counsel and, more importantly, she has failed to obtain
an expert report or other sufficient medical documentation in support of her claim of a vaccine-
caused injury. Thus, the undersigned finds it appropriate to dismiss this case for failure to

prosecute.

Additionally, to prove causation, petitioner must "show by preponderant evidence that
the vaccination brought about [the] injury by providing: (1) a medical theory causally connecting
the vaccination and injury; (2) a logical sequence of cause and effect showing that the
vaccination was the reason for the injury; and (3) a showing of proximate temporal relationship
between vaccination and injury." 
l\/loberly, 592 F.3d at 1322 
(citing Althen v. Sec’v of Health &
Human Servs., 
418 F.3d 1274
, 1278 (Fed. Cir. 2005). Petitioner bears the burden of proving a
prima facie case by a preponderance of the evidence. S_ee_ 42 U.S.C. § 300aa-l3(a)(l)(A); s_e_e
also l\/loberlv v. Sec’v of Health & Human Services, 
592 F.3d 1315
, 1320 (Fed. Cir. 2010).

The preponderance standard applies to each element of petitioner’s proof. For example,
with regard to the medical theory, the theory must be "persuasive" - that is, specific to
petitioner’s case and supported by a "reputable", i.e., reliable, scientific or medical explanation.
Moberly, 592 F.3d at 1322 
(holding that "[a] petitioner must provide a reputable medical or
scientific explanation that pertains specifically to petitioner’s case"); 
Althen, 418 F.3d at 1278
(holding that "[a] persuasive medical theory is demonstrated by ‘proof of a logical sequence of
cause and effect showing that vaccination was the reason for the injury[,]’ the logical sequence
being supported by ‘reputable medical or scientific explanation[,]’ . . ."(citing Grant v. Sec’y of

Health & Human Servs., 
956 F.2d 1133
, at 1148 (Fed Cir. 1992)).

A petitioner may not be awarded entitlement under the Vaccine Act based on petitioner’s
claims alone, Rather, the petition must be supported by either medical records or by the opinion
of a competent physician. §§ 42 § 300aa-l3(a)(l). ln this case, because the medical records do
not support petitioner’s clairn, a medical opinion must be offered in support.

Petitioner has not offered a supportive expert report in support of her claim. ln addition,
there is no evidence that any of Ms. Ricard’s treating physicians attributed any of her conditions
to either her 'l`dap or her flu vaccinations. There is also no evidence in the record of appropriate

temporal relationship between l\/ls. Ricard’s vaccination(s) and the onset of her injuries.

IV. Conc|usion

Therefore, Ms. Ricard’s petition is hereby DENIED. This case is dismissed for failure to
prosecute and for insufficient proof. ln the absence of a motion for review, the Clerk is directed

to enter judgment accordingly.

IT IS SO ORDERED.
w

Thomas L. Gowen
Special Master