LAURA D. MILLMAN, Special Master.
On August 19, 2014, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that human papillomavirus ("HPV" or "Gardasil") vaccine administered August 25, 2011 caused an intense skin reaction to her sweat, chlorine, and soap among other substances; hyperactivity, anxiety; skin rashes; and permanent disfigurement. Pet. Preamble and ¶¶ 4-7. Petitioner did not file medical records until November 26, 2014, three months after she filed the petition. Petitioner did not file her affidavit until July 24, 2015, eleven months after she filed her petition. She did not file additional medical records until July 29, 2015. Even then, petitioner had more medical records which she never filed.
On September 24, 2015, respondent filed his Rule 4(c) Report opposing compensation.
On October 14, 2015, the undersigned issued an Order setting a deadline of July 13, 2016 (one year later) for petitioner to file an expert report. The reason the undersigned gave petitioner one year to file an expert report is that the pattern of petitioner's behavior was to delay constantly and not respond appropriately to orders. Petitioner did not file an expert report by the deadline one year later or ever.
A year after the expert report was due, on July 7, 2017, petitioner moved for discovery from Merck, the manufacturer of Gardasil, of samples of the prior (2011) formula of Gardasil vaccine; chemical and clinical facts/notes regarding the former formulation of Gardasil and subsequent formulas; information regarding the changes in the formula and the reasons for the changes; and any further information to enable a clinician to form an opinion "theoretically linking the injuries" petitioner claimed the vaccine caused. Pet. Mot. at ¶ 13.
On July 10, 2017, the undersigned denied petitioner's motion for discovery. Most of petitioner's medical records refer to her having acne vulgaris, not urticarial (hives) and rashes. Order at 5. The undersigned regarded petitioner's motion for discovery consistent with the pattern of petitioner's numerous efforts to delay resolution of the case.
On July 13, 2017, after a telephonic status conference in which petitioner's counsel stated that petitioner was less than responsive, the undersigned issued an Order stating that if petitioner did not file medical records from her current doctor, Dr. Ioannis Moissidis, by November 17, 2017, the undersigned would dismiss this case for failure to prosecute under Vaccine Rule 21(b)(1).
Petitioner did not file anything by November 17, 2017. The undersigned now
On March 2, 2009, petitioner saw Dr. Patricia Stec, complaining of a runny nose, stuffy nose, coughing, headache, dizziness for 10 days, and anxiety. Med. recs. Ex. 3, at 24.
On July 5, 2010, petitioner saw her doctor because she noticed she was unable fully to extend her arms past 170 degrees bilaterally in cheerleading.
On October 16, 2010, petitioner returned to her doctor for her second Gardasil vaccination.
On August 25, 2011, petitioner received her third Gardasil vaccination. Med. recs. Ex. 3, at 20.
On August 26, 2011, petitioner telephoned Dr. Frank Roemisch and said she had transient urticaria (hives) the prior night, which was eight hours after Gardasil and when petitioner was very stressed regarding time constraints to do her homework. Med. recs. Ex. 5, at 36. Petitioner's urticaria was resolved with Benadryl taken the prior night and repeated that morning. She did not have systemic symptoms.
On August 27, 2011, petitioner telephoned Dr. Roemisch and said her hives relapsed without systemic symptoms.
On October 8, 2011, petitioner saw Dr. Roemisch, complaining of a body rash and severe pruritis (itching) since August 26, 2011, especially on her upper body and arms. Med. recs. Ex. 3, at 25. Benadryl helped, but made her drowsy. She had an increase in pruritis after a gym class.
On October 15, 2011, petitioner telephoned Dr. Roemisch and said her pruritis decreased, she was off Prednisone, and she did not use Xyzal.
On November 1, 2011, petitioner saw LPN Reyna Garcia, who works with Dr. Stec.
On April 19, 2012, petitioner telephoned Dr. Roemisch, complaining of pruritus and rashes with multiple lotions and exercise.
On April 17, 2013, petitioner saw Dr. Vassilios Dimitropoulos, a dermatologist, who diagnosed her with acne vulgaris on her face, chest, and back, post-inflammatory hyperpigmentation, and xerosis (abnormally dry skin). Med. recs. Ex. 2, at 14. Petitioner had had acne for six years.
On June 19, 2013, petitioner returned to Dr. Dimitropoulos.
On August 14, 2013, petitioner returned to Dr. Dimitropoulos.
On February 5, 2014, petitioner returned to Dr. Dimitropoulos.
On January 7, 2015, petitioner returned to Dr. Dimitropoulos. Med. recs. Ex. 4, at 27. She had facial acne, dermatographism
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 injury."
418 F.3d at 1278.
Without more, "evidence showing an absence of other causes does not meet petitioner's affirmative duty to show actual or legal causation."
Petitioner must show not only that but for Gardasil vaccine, she would not have had rashes and other alleged injuries, but also that Gardasil vaccine was a substantial factor in causing her rashes and other alleged injuries.
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. The medical records do not support petitioner's allegations. She has not filed a medical expert opinion in support of her allegations.
The undersigned
The petition is