Lewis v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
KAREN C. LEWIS, *
* No. 15-1078
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: July 25, 2016
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Court of Fed. Claims Rule 25;
* Death of petitioner; Decision
* dismissing case.
Respondent. *
*********************
Erin A. Juzapavicus, Milam Howard Nicandri Dees & Gillam, P.A., Jacksonville,
FL;
Darryl R. Wishard, United States Dep’t of Justice, Washington, D.C., for
respondent.
PUBLISHED DECISION DENYING COMPENSATION1
Karen Lewis filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. §300a-10 through 34, on September 25, 2015. Her petition alleged
that, as a result of her receipt of the influenza (“flu”) vaccine administered to her
on September 25, 2012, she suffered polymyalgia rheumatica (“PMR”) and giant
cell arteritis (“GCA”). However, Ms. Lewis’s petition must be dismissed due to
the lack of a proper plaintiff to maintain the action.
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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 ruling on its website. 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 appear in the document posted on the website.
I. Procedural History
Represented by Ms. Erin Juzapavicus, Ms. Lewis filed her petition on
September 25, 2015. Ms. Juzapavicus filed medical records and an affidavit on
October 26, 2015. On that date, Ms. Juzapavicus also submitted a status report,
stating that Ms. Lewis had passed away on October 8, 2015. On November 25,
2015, Ms. Juzapavicus filed Ms. Lewis’s certificate of death and additional
medical records. Ms. Juzapavicus filed final medical records and a statement of
completion on December 21, 2015.
The Secretary filed her report pursuant to Vaccine Rule 4 on February 12,
2016. The Secretary argued that no treating physician provided a theory as to how
the flu vaccine could cause PMR or GCA, nor had any medical specialists that
treated Ms. Lewis associated the flu vaccine with her conditions. Additionally, the
Secretary argued that the time of onset, seven hours, was not reasonable. Resp’t’s
Rep. at 11-12.
During the ensuing status conference, held on March 4, 2016, the parties
discussed the Rule 4 report and whether Ms. Lewis’s surviving spouse or her
children would establish an estate to continue the litigation. Ms. Juzapavicus filed
a status report on April 4, 2016, stating that Ms. Lewis’s surviving spouse, Dexter
Lewis, had passed away on March 4, 2016. She also stated that she contacted
David Lewis who was named successor Attorney-in-Fact after Dexter Lewis. See
exhibit 20. Ms. Juzapavicus represented that prior to Mr. Dexter Lewis’s passing,
and later confirmed by David Lewis, Mr. Dexter Lewis informed Ms. Juzapavicus
that an estate would not be opened for Ms. Lewis. Therefore, Ms. Juzapavicus
indicated that she was “without a client.”
The undersigned held a status conference to determine next steps in light of
Ms. Juzapavicus’s status report. Pursuant to Rule 25 of the Rules of the Court of
Federal Claims, the undersigned ordered any interested party to file a motion for
substitution of party within 90 days with a copy of the order provided to Ms.
Lewis’s surviving children. To date, no such motion has been made. The matter is
now ripe for adjudication.
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II. Legal Standard
The Vaccine Rules do not address the consequences of the death of the
petitioner. Thus, in absence of any specific direction, the Rules of the Court of
Federal Claims (RCFC) are consulted. See Vaccine Rule 1(c).
Rule 25 of the RCFC contains two aspects. First, Rule 25 explains the
procedure that may be followed. “If a party dies and the claim is not extinguished,
the court may order substitution of the proper party. A motion for substitution may
be made by any party or by the decedent’s successor or representative.” Second, if
the procedure is not followed, Rule 25 sets forth the consequences. “If the motion
is not made within 90 days after service of a statement noting death, the action
must be dismissed.”
III. Discussion
Ms. Lewis’s petition must be dismissed due to the lack of a proper plaintiff
to maintain the action. Ms. Lewis cannot act as the petitioner because she has
died. No one has come forward to substitute for Ms. Lewis within the time
permitted by Rule 25. Thus, the action must be dismissed.
IV. Conclusion
For the foregoing reason, this case is dismissed. The Clerk shall enter
judgement accordingly.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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