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In the United States Court of Federal Claims OFFICE of SPECIAL MASTERS No

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In the United States Court of Federal Claims OFFICE of SPECIAL MASTERS No In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 11-577V Filed: May 24, 2019 To be Published * * * * * * * * * * * * * * * * * * * * * * * * * D.G., * * Petitioner, * * v. * Influenza (“flu”) vaccine; seizures; * autoimmune autonomic neuropathy; SECRETARY OF HEALTH * gastroparesis; POTS; myasthenia AND HUMAN SERVICES, * gravis; conversion disorder * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Lisa A. Roquemore, Rancho Santa Maria, CA, for petitioner. Justine E. Walters, Washington, DC, for respondent. MILLMAN, Special Master DISMISSAL DECISION1 On September 9, 2011, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that influenza (“flu”) vaccine administered on August 23, 2009 caused her muscle weakness, fatigue, dizziness, excessive sweating especially after meals, whose onset was 10 days post-vaccination. On September 12, 2009, she alleged she had seizure and fainting after breakfast. On September 17, 2009, she alleged 1 Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public unless they contain trade secrets or commercial or financial information that is privileged and confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted invasion of privacy. This means the decision will be available to anyone with access to the Internet. When such a decision is filed, petitioner has 14 days to identify and move to redact such information prior to the document’s disclosure. If the special master, upon review, agrees that the identified material fits within the banned categories listed above, the special master shall redact such material from public access. On August 16, 2017, petitioner filed a status report in which she informally moved to change the caption to reflect just her initials “for privacy reasons.” S.R., at 2. On the same date, the undersigned granted petitioner’s informal motion to redact her name to her initials and ordered the Clerk of Court to change the case caption, which the Clerk of Court did. This case is already redacted. vasovagal syncope,2 benign systolic murmur, positive ANA,3 multiple somatic complaints, anxiety, dystonia, neurocardiogenic syncope,4 and postural orthostatic tachycardia syndrome (“POTS”).5 Pet. at ¶¶ 9, 12, 13, 15, 15, 19, 20, 23, 25, 28. 31, 34, 38, 41. Petitioner’s affidavit, dated September 7, 2011, was attached without an exhibit number. PROCEDURAL HISTORY On September 9, 2011, this case was assigned to former Special Master Daria J. Zane. On February 21, 2012, petitioner filed a status report regarding record collection in which petitioner’s original counsel Robert J. Krakow stated that he was having difficulty obtaining treatment records from Dr. Rashid A. Buttar because of an unpaid bill reflected in Exhibit 56. S.R., at 5. Mr. Krakow states that Generation Rescue offered to pay for all medical treatment and expenses for petitioner’s medical treatment by Dr. Buttar, an osteopath. Id. at 6. The condition for Generation Rescue’s payment of petitioner’s medical treatment and expenses was petitioner’s agreement to being on video during Dr. Buttar’s treatment of her. Id. Mr. Krakow states that for reasons Generation Rescue did not explain to petitioner, Generation Rescue discontinued its involvement with Dr. Buttar’s treatment of petitioner and refused to pay her medical bills for that treatment. Id. On May 9, 2012, petitioner filed as Exhibit 58 an external terabyte hard drive with the name “DG Copy” consisting of files of videos. Each video is marked by the name of the digital file or folder as the files appear on the hard drive. On July 16, 2012, petitioner’s counsel filed a motion to withdraw. Mot. Petitioner wrote her counsel on May 30, 2012, stating that “she wished to ‘take over representation of my case’ and instructed counsel to discontinue representation of her before the Court for all purposes.” Mot., at 1. On October 2, 2012, petitioner filed a consented Motion to Substitute Attorney, which former Special Master Zane granted on October 22, 2012. 2 Vasovagal syncope is “a transient vascular and neurogenic reaction marked by pallor, nausea, sweating, bradycardia, and rapid fall in arterial blood pressure which, when below a critical level, results in loss of consciousness and characteristic electroencephalographic changes. It is most often evoked by emotional stress associated with fear or pain.” Dorland’s Illustrated Medical Dictionary 1818 (32nd ed. 2012) [hereinafter, “Dorland’s”]. 3 ANA or antinuclear antibodies are “antibodies directed against nuclear antigens; ones against a variety of different antigens are almost invariably found in systemic lupus erythematosus and are frequently found in rheumatoid arthritis, scleroderma (systemic sclerosis), Sjögren syndrome, and mixed connective tissue disease. Antinuclear antibodies may be detected by immunofluorescent staining. Serologic tests are also used to determine antibody titers against specific antigens.” Dorland’s at 101. 4 Neurocardiogenic syncope is “a serious type of vasovagal syncope precipitated by a stimulus that causes either bradycardia, a decrease in vascular tone, or both at once.” Dorland’s at 1818. 5 Postural orthostatic tachycardia syndrome (POTS) is “a group of symptoms (not including hypotension) that sometimes occur when a person assumes an upright position, including tachycardia, tremulousness, lightheadedness, sweating, and hyperventilation; this is seen more often in women than in men, and the etiology is uncertain.” Dorland’s at 1844. 2 On December 6, 2012, petitioner filed a Statement of Completion. On March 19, 2013, respondent filed his Rule 4(c) Report, recommending against compensation. On June 11, 2013, petitioner filed a status report regarding her review of video footage and attached a list of those videos which she contended were relevant and irrelevant. Videos included interviews on the television shows “20/20,” “Inside Edition,” “60 Minutes,” “NBC Washington,” “Fox D.C. News,” and “NBC Charlotte News,” videos of petitioner incapable of walking forward and then running races, and multiple videos during the week she spent at Dr. Buttar’s treatment center in North Carolina. On July 7, 2013, former Special Master Zane issued a decision awarding interim attorneys’ fees and costs to petitioner’s former attorney, stating that the special master concluded a reasonable basis existed only up to the point of petitioner’s former counsel’s withdrawal. “Whether a reasonable basis existed beyond this point and continues to exist to date cannot be decided based on the record at present, and this decision should not be construed as making any such decision.” Int. Fees Dec. at 5 n.7. Former Special Master Zane awarded petitioner’s former counsel $44,961.65 in fees and costs. Id. at 8. Judgment entered on August 2, 2013. On September 4, 2013, this case was reassigned to former Special Master Lisa Hamilton- Fieldman. On October 22, 2013, petitioner filed the expert report of Dr. Lawrence Steinman, a neurologist. Ex. 65. This was over two years after she filed her petition. On April 25, 2014, respondent filed the expert report of Dr. Peter D. Donofrio. Ex. B. On May 30, 2014, former Special Master Hamilton-Fieldman issued a decision awarding petitioner’s interim costs of $2,950.29. Judgment entered on July 1, 2014. On August 14, 2014, petitioner filed the first supplemental expert report of Dr. Steinman. Ex. 92. On August 19, 2014, former Special Master Hamilton-Fieldman issued an Order for petitioner to file a second supplemental report from Dr. Steinman, explaining how demyelination led to the variety of petitioner’s symptoms. On August 28, 2014, petitioner filed Dr. Steinman’s second supplemental report. Ex. 108. On January 13, 2015, respondent filed the expert report of Dr. Eric Lancaster, a neurologist. Ex. H. On January 15, 2015, the case was reassigned to the undersigned. On February 20, 2015, respondent filed the expert report of Dr. J. Lindsay Whitton. Ex. Z. On June 1, 2015, petitioner filed a third supplemental report of Dr. Steinman. Ex. 118. 3 On August 11, 2015, respondent filed a Motion for Issuance of Subpoena to obtain any and all documentation, video files, audio files, news releases, reporting, or broadcasts, and/or website postings/updates relating to petitioner posted on Dr. Buttar’s websites. On the same date, the undersigned granted respondent’s motion. On September 4, 2015, respondent filed the first supplemental expert reports of Dr. Lancaster (Ex. RR) and Dr. Whitton (Ex. SS). On October 13, 2015, petitioner filed a supplemental declaration in support of her petition (Ex. 139). She explains how she became a media star by saying she alerted her family and friends about her physical problems. Ex. 139, at 4. One of her former colleagues was working for the county newspaper and asked if he could do an article in his paper explaining her condition and its being tied to flu vaccine. Petitioner writes she agreed since he was a friend and struggling to get started in his new job. Petitioner writes: After I learned that the flu vaccine was causing my issues, I thought I was doing a public service by speaking out as perhaps the batch of vaccine I received was tainted. From there the media circus began, starting with local stations contacting me to national syndicates. However, I remember one of my doctors or psychologists recommending later on that I should avoid the media as the chaos was probably not helping my symptoms, but likely contributing to them. Id. Petitioner continues in her supplemental declaration by saying that she thought her first attorney Robert Krakow, whom her then-husband hired per Stan Kurtz’s recommendation, was involved to help her deal with media relations. Id. She continues: At this time, I was also contacted by Stan Kurtz from Generation Rescue, who is an anti-vaccine advocate. He and his organization quickly commandeered my injury to turn it into a poster story for their cause against vaccines[.] [I]n exchange they promised to “cure” me with the help of Dr.
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