Freie v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-175V
Filed: March 25, 2021
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GLENN FREIE, *
* Dismissal; Prevnar 13 Vaccine;
Petitioner, * Axonal Sensorimotor Polyneuropathy.
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Zachary Hermsen Esq., Whitfield & Eddy, PLC, Des Moines, LA, for petitioner.
Christine Becer, Esq., U.S. Dept. of Justice, Washington, DC for respondent.
DECISION1
Roth, Special Master:
On February 2, 2018, petitioner, pro se, filed a petition for Vaccine Compensation in the
National Vaccine Injury Compensation Program (“the Program”),2 alleging that a Prevnar 13
vaccination caused him to develop an unspecific injury. ECF No. 1. Petitioner obtained counsel
on June 26, 2018 and filed Amended Petitions alleging post-vaccinal “Axonal Sensorimotor
Polyneuropathy.” ECF Nos. 31, 52. The information in the record, however, does not show
entitlement to an award under the Program. On March 25, 2021, petitioner filed a Motion for
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Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347,
116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will
be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id.2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the
Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act.
Dismissal Decision requesting that his case be dismissed. ECF No. 73.
To receive compensation under the Program, petitioner must prove either 1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to his vaccination, or 2) that he suffered an injury that was actually caused by a vaccine. See §§
13(a)(1)(A) and 11(c)(1). An examination of the record did not uncover any evidence that
petitioner suffered a “Table Injury.” Because there were insufficient records supporting
petitioner’s claim, petitioner was required to file a medical expert opinion to support his claim. See
§ 13(a)(1).
Petitioner filed three expert reports by his treating physician, Dr. Davis. ECF Nos. 64, 67,
68. However, Dr. Davis’s reports failed to satisfy petitioner’s burden under the Althen Prongs. Dr.
Davis proposed molecular mimicry and bystander activation as theories to satisfy Althen Prong I
but did not explain what component of Prevnar 13 could act as a molecular mimic to a human
protein and cause petitioner’s alleged injury. He failed to reference any articles that addressed
Prevnar 13 and Axonal Sensorimotor Polyneuropathy. Dr. Davis’s reports also failed to satisfy
petitioner’s burden under Althen Prong II as he did not discuss any of petitioner’s medical history
or the contribution, if any, of petitioner’s peripheral neuropathy, chronic A-Fib causing fatigue,
unilateral discontinuation of gout medication, and joint and muscle pains that pre -existed
petitioner’s receipt of the Prevnar 13 vaccine. Dr. Davis did not satisfy Althen Prong III when he
opined that petitioner suffered a delayed hypersensitivity response, relying on petitioner’s claim
of a six-hour onset. Petitioner’s claim of six-hour onset was not corroborated and peripheral
neuropathy is not a manifestation of delayed hypersensitivity response.
A telephonic status conference was held on January 21, 2021, during which failure to
satisfy petitioner’s burden under the Althen Prongs was discussed. Petitioner was ordered to file
an expert report that fully addressed the Althen Prongs or to file a Motion for Dismissal Decision
or a Motion for Ruling on the Record. ECF No. 72.
Petitioner filed a Motion for Dismissal Decision on March 25, 2021, stating that an
investigation has demonstrated that petitioner will likely be unable to succeed on his claim in the
Vaccine Program. ECF No. 73.
Accordingly, it is clear from the record in this case that petitioner has failed to demonstrate
either that he suffered a “Table Injury” or that his injuries were “actually caused” by a vaccination.
Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
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