Summers v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-1280V UNPUBLISHED

MACKENZIE SUMMERS,

Chief Special Master Corcoran Petitioner,

v. Filed: August 10, 2021 SECRETARY OF HEALTH AND Motion for decision; Dismissal; HUMAN SERVICES, Human papillomavirus (“HPV”) vaccine; Postural Orthostatic Respondent. Tachycardia Syndrome (“POTS”)

Andrew D. Downing, Van Cott & Talamante, PLLC, for Petitioner.

Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION1 On September 28, 2020, Mackenzie Summers filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 34,2 (the “Vaccine Act”). Ms. Summers alleged that she developed Postural Orthostatic Tachycardia Syndrome (“POTS”), among other injuries, from a human papillomavirus (“HPV”) vaccine she received on September 13, 2017. ECF no. 1.

On July 28, 2021, Ms. Summers filed a motion for a decision dismissing the petition. ECF no. 18. For the reasons set forth below, Ms. Summers’s motion is GRANTED, and this case is DISMISSED.

Ms. Summers did not file any medical records, affidavits, or other supporting documentation with the petition. The PAR Initial Order required Ms. Summers to file these statutorily required documents. ECF No. 5. Ms. Summers received nine extensions of time but did not file any documents to comply with the PAR Initial Order.

On July 28, 2021, Ms. Summers filed a motion for a decision dismissing the petition stating that:

“She wishes to pursue a third party action in district court against [the vaccine manufacturer] directly. This choice should not be viewed in any way that Petitioner does not believe in the merits of her claim or that her injuries are not a result of [the HPV vaccine]. Petitioner simply needs a judgment from the Vaccine Program so that she may reject said judgment and submit her election to opt out. However, petitioner feels she will be unable to prove that she is entitled to compensation in the Vaccine Program.”

ECF No. 18.

To receive compensation under the National Vaccine Injury Compensation 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 11(c)(1). Ms. Summers alleged a Non-Table claim, i.e., that her POTS and other injuries were actually caused by the HPV vaccination.

Under the Vaccine Act, a petitioner may not receive compensation 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). For a Non-Table claim, a petitioner must satisfy all three of the elements established by the Federal Circuit in Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1278 (2005): “(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 proximate temporal relationship between vaccination and injury.”

Initially, Ms. Summers has not filed any medical records as a preliminary statutory requirement to compensation in the Vaccine Program. In regard to the requirements of a Non-Table claim, she has not submitted sufficient evidence to establish the Althen prongs, such as an expert report proposing a medical theory. Moreover, Ms. Summers admitted in her motion for a decision that she will not be able to establish entitlement to compensation.

Thus, Petitioner has failed to establish entitlement to compensation in the Vaccine Program. This case is dismissed for insufficient proof. The clerk shall enter judgment accordingly.3 3If Petitioner wishes to bring a civil action, she must file a notice of election rejecting the judgment pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.” IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master