Fey v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
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JASON FEY and HEATHER FEY, *
as parents and guardians of E.P.F., * No. 18-615V
* Special Master Christian J. Moran
Petitioners, *
*
v. * Filed: October 9, 2019
*
SECRETARY OF HEALTH * Entitlement, dismissal
AND HUMAN SERVICES, *
*
Respondent. *
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Kathleen M. Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for petitioners;
Adriana R. Teitel, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Jason and Heather Fey filed a petition on behalf of their child, E.P.F., under
the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa—10 through 34, on
May 1, 2018. The petition alleged that an HPV vaccination administered on
December 30, 2015, caused E.P.F.’s chronic immune thrombocytopenia purpura
(“ITP”) to be significantly aggravated. Pet. at 1. On October 2, 2019, the Feys
moved for a decision dismissing their petition.
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The E-Government Act, 44 § 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.
I. Procedural History
The Feys filed a petition on behalf of E.P.F. on May 1, 2018. The Feys
finished filing E.P.F.’s medical records and an expert report from Dr. Shoenfeld
(exhibit 7) on June 4, 2018. On June 18, 2018, the Feys filed a statement of
completion.
On August 17, 2018, the Secretary filed a status report identifying
outstanding medical records. The Secretary also proposed a due date for filing his
Rule 4 report and responsive expert report. The Feys filed the outstanding medical
records by October 16, 2018. Following several extensions of time, the Secretary
ultimately filed his Rule 4 report and responsive expert report from Dr. Strouse
(exhibit A) on March 26, 2019. Dr. Strouse opined that Dr. Shoenfeld had not
substantiated his proposed molecular mimicry theory and noted the lack of
epidemiological evidence. Exhibit A at 2, 3.
In the Rule 4 report, the Secretary opposed a finding of entitlement arguing
the Feys had not demonstrated that the clinical course of E.P.F.’s ITP had deviated
from its natural course and that E.P.F.’s actual onset was much faster than the
onset proposed by Dr. Shoenfeld. Resp’t’s Rep. at 13-14. In the report, the
Secretary stated an intent to file another expert report from an immunologist.
At a status conference on April 22, 2019, the undersigned noted a lack of
clarity in Dr. Shoenfeld’s opinion on timing and suggested that the Feys file a
report addressing the worsening of E.P.F’s ITP following vaccination. After the
status conference, the Secretary was ordered to file an expert report from an
immunologist and the Feys were ordered to subsequently file their expert reports
60 days later. Order, issued, Apr. 23, 2019.
The Secretary filed an expert report from Dr. Tompkins (exhibit C) on July
12, 2019. Dr. Tompkins challenged Dr. Shoenfeld’s medical theory and timing of
the aggravation of E.P.F.’s ITP. Exhibit C at 12. The Feys’ due date for filing
their expert reports was then set for September 10, 2019. After receiving an
extension of time until October 9, 2019, to file their expert reports, the Feys instead
moved for a decision dismissing their petition on October 2, 2019. This matter is
now ready for adjudication.
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II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program, petitioners must prove either 1) that petitioner suffered a “Table Injury” –
i.e., an injury falling within the Vaccine Injury Table – corresponding to one of
petitioner’s vaccinations, or 2) that petitioner suffered an injury that was actually
caused or significantly aggravated 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 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). If the medical records do not sufficiently support a petitioner’s claim, a
medical opinion must be offered in support. The Feys do not allege, nor does the
record support, that E.P.F. suffered a “Table Injury.” The Feys have alleged a
significant aggravation claim.
Despite a supportive statement from one of E.P.F.’s treating doctors, Dr.
Messenger, the Feys stated that Dr. Messinger was unwilling to serve as an expert
and that their retained pediatric hematologist from Harvard, Dr. Colin Sieff, was
unable to support their significant aggravation theory. The Feys conceded that
“they will be unable to prove that they are entitled to compensation in the Vaccine
Program.” Pe’t’r’s Mot. at 2.
Beyond the Feys’ concession that this case is not compensable, the record
and the Secretary’s expert reports in opposition reveal, among other issues, that the
Feys’ timing prong and the worsening of E.P.F.’s ITP have not been sufficiently
developed. Accordingly, the undersigned finds that the Feys have not
demonstrated that the HPV vaccination significantly aggravated E.P.F.’s ITP.
Thus, the Motion for Decision is GRANTED and this case is
DISMISSED for insufficient proof. The Clerk shall enter judgment
accordingly.
Any questions may be directed to my law clerk, Andrew Schick, at (202)
357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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