In the United States Court of Federal Claims
                           OFFICE OF SPECIAL MASTERS

*********************
ASHLEY DALTON,                        *
                                      *    No. 15-1465V
                  Petitioner,         *    Special Master Christian J. Moran
                                      *
v.                                    *    Filed: August 31, 2020
                                      *
SECRETARY OF HEALTH                   *    Entitlement, dismissal
AND HUMAN SERVICES,                   *
                                      *
                  Respondent.         *
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Andrew D. Downing, Van Cott & Talamante, PLLC, for petitioner;
Debra A. Filteau Begley, United States Dep’t of Justice, Washington, DC, for
respondent.

          UNPUBLISHED DECISION DENYING COMPENSATION 1

      Ashley Dalton alleged that a human papillomavirus (HPV) vaccine she
received on January 23, 2013, caused her to suffer from an autoimmune disorder,
chronic fatigue, myalgia, and various other symptoms and aggravated underlying
symptoms of a pre-vaccination mild concussion. Petition, filed Dec. 3, 2015, ¶ 9,
11.2 On August 3, 2020, Ms. Dalton moved for a decision dismissing her petition.



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  The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website
(https://www.uscfc.uscourts.gov/aggregator/sources/7). Once posted, anyone can access this
decision via the internet. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a
motion proposing redaction of medical information or other information described in 42 U.S.C. §
300aa-12(d)(4). Any redactions ordered by the special master will be reflected in the document
posted on the website.
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  Because Ashley Dalton was a minor when the petition was filed, her mother was the initial
petitioner. After Ms. Dalton reached the age of majority, she assumed the role of petitioner.
Order, issued Oct. 20, 2017. For simplicity, the decision refers to Ms. Dalton as the petitioner
throughout the life of the case.
        I.   Procedural History

       Ms. Dalton filed a petition on December 3, 2015, and submitted supporting
medical records over the next few months. After Ms. Dalton filed a statement of
completion on February 1, 2016, the Secretary proposed a due date for his Rule 4
report. Resp’t’s Status Rep., filed Mar. 1, 2016.

      In his Rule 4 report, the Secretary opposed compensation arguing that the
medical records placed the onset of Ms. Dalton’s headaches one year after her third
HPV vaccination and that Ms. Dalton had not presented a persuasive medical
theory. Resp’t’s Rep., filed May 2, 2016, at 10-11. At a status conference to
discuss the Rule 4 report, Ms. Dalton was ordered to file her school records to
address onset. Order, issued May 11, 2016. After submitting the school records,
Ms. Dalton stated her intent to file an expert report. Order, issued July 11, 2016.

        Ms. Dalton filed an expert report from Dr. Gireesh Velugubanti, one of her
treating physicians. Exhibit 24. At a subsequent status conference, respondent
requested clarification on the injury that Ms. Dalton was alleging. For Ms. Dalton
to file a report from a retained expert, the undersigned issued expert instructions.
Order, issued Feb. 15, 2017.

       Ms. Dalton filed an expert report from Dr. Jill Schofield suggesting that Ms.
Dalton may be suffering from postural tachycardia syndrome (“POTS”). Exhibit
42. Because Dr. Schofield’s report did not comply with the expert instructions,
Ms. Dalton was ordered to file a supplemental expert report from Dr. Schofield.
Ms. Dalton advised that Dr. Schofield would not be providing a supplemental
report because she found the expert instructions to be burdensome. Pet’r’s Status
Rep., filed Sept. 27, 2017. At a status conference to discuss this issue, the
undersigned explained that he had ordered a supplemental report because Dr.
Schofield’s opinion contained gaps in the medical theory and timing prongs. Ms.
Dalton was permitted additional time to retain a new expert. Order, issued Oct. 11,
2017.

       On January 29, 2018, Ms. Dalton filed an expert report from Dr. Mitchell
Miglis providing a diagnosis of autonomic dysfunction, but not POTS, and
identifying fibromyalgia as a symptom. Exhibit 64. Ms. Dalton then filed an
expert report from Dr. Yehuda Shoenfeld to address the medical theory. Exhibit
66. Dr. Shoenfeld offered medical theories connecting the HPV vaccine to POTS



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and fibromyalgia. At a status conference to discuss Dr. Shoenfeld’s report, the
undersigned noted that neither Dr. Shoenfeld nor Dr. Miglis had clearly stated their
positions on timing. Ms. Dalton proposed filing a status report to clarify her
experts’ position on timing. Ms. Dalton also confirmed that she would no longer
rely on Dr. Schofield’s opinion, and, consequently, it was then stricken from the
record. Order, issued May 15, 2018.

       On June 13, 2018, Ms. Dalton filed a status report on her experts’ positions
regarding timing. A few days later, Ms. Dalton filed a status report addressing a
medical article on the diagnostic criteria for adverse effects after an HPV
vaccination. Pet’r’s Status Rep., filed June 18, 2018. The Secretary moved to
strike the status report arguing that Ms. Dalton’s experts had not addressed the
diagnostic criteria. Resp’t’s Resp., filed June 29, 2018. The Secretary’s motion
was denied but the undersigned questioned the importance of the article. Order,
issued July 27, 2018.

       On December 7, 2018, the Secretary filed expert reports from Dr. Kenneth
Mack and Dr. James Moy. Exhibits A, C. Both experts disputed the proposed
diagnosis of POTS, with Dr. Moy also disputing that Ms. Dalton was suffering
from an autoimmune disease and Dr. Mack proposing a diagnosis of new persistent
daily headache.

      Ms. Dalton filed a responsive expert report from Dr. Miglis on February 12,
2019, and a responsive report from Dr. Shoenfeld on April 30, 2019. Exhibits 138,
141. The Secretary requested the opportunity to file responsive expert reports.
Resp’t’s Status Rep., filed July 8, 2019.

       On November 26, 2019, the Secretary filed responsive reports from his
experts. Exhibits X, Y. Ms. Dalton advised that she did not need to file any
further responsive reports. Order, issued Nov. 22, 2019.

      The undersigned then issued an order outlining the content of briefs and a
schedule. Order, issued Dec. 3, 2019. Ms. Dalton filed her brief on February 14,
2020.

       Before the Secretary filed his brief, Ms. Dalton moved to stay all deadlines
due to the possibility that she would dismiss her vaccine claim and join multi-
district litigation against the vaccine manufacturer. Pet’r’s Mot. Stay, filed July
31, 2020. Ms. Dalton’s motion to stay was granted. Order, issued July 31, 2020.



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       On August 3, 2020, Ms. Dalton moved for a decision dismissing her
petition. While Ms. Dalton was requesting dismissal of her claim, she maintained
that “This choice should not be viewed in any way that [she] does not believe in
the merits of her claim or that her injuries are not a result of [the vaccine].” Pet’r’s
Mot. Dismiss at 2. Ms. Dalton indicated that the Secretary did not oppose the
motion. The Secretary did not file a response. This matter is now ready for
adjudication

       II.   Analysis

       To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), a petitioner must prove either 1) that the
vaccinee suffered a “Table Injury” – i.e., an injury falling within the Vaccine
Injury Table – corresponding to one of the vaccinations, or 2) that the vaccinee
suffered an injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A)
and 300aa-11(c)(1). Under the Act, a petitioner may not be given a Program award
based solely on the petitioner’s claims alone. Rather, the petition must be
supported by either medical records or by the opinion of a competent physician.
§ 300aa-13(a)(1).

       In this case, Ms. Dalton filed medical records and expert reports in support
of her claim, but nonetheless, wishes to have her claim dismissed and judgment
entered against her pursuant to 42 U.S.C. § 300aa—21(a). To conclude the
proceedings on the petition and have judgment enter, a decision must be issued.
Vaccine Rules 10(c), 11(a).

      To conform to section 12(d)(3), a decision must “include findings of fact and
conclusions of law.” Here, although the parties were in the process of presenting
arguments, the evidence weighs against a finding that Ms. Dalton suffered from
POTS. Without a showing that the vaccinee suffered the injury that the vaccine
allegedly caused, the remainder of the case becomes moot. See Broekelschen v.
Sec’y of Health and Human Servs., 

, 1346 (Fed. Cir. 2010).
Accordingly, the undersigned is not required to evaluate whether the HPV vaccine
can cause POTS.




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      Thus, the Motion for Decision is GRANTED and this case is
DISMISSED WITH PREJUDICE for insufficient proof. The Clerk shall
enter judgment accordingly. See Vaccine Rule 21(b).

     IT IS SO ORDERED.
                                      s/Christian J. Moran
                                      Christian J. Moran
                                      Special Master




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