Breland v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-312V
April 13, 2015
Not to be Published
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CHRISTINA BRELAND, *
*
Petitioner, *
*
v. * human papillomavirus (“HPV”) vaccine;
* seizure disorder; pre-existing seizures;
SECRETARY OF HEALTH * no expert witness; petitioner moves for
AND HUMAN SERVICES, * decision on written record; dismissed
*
Respondent. *
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John F. McHugh, New York, NY, for petitioner.
Linda S. Renzi, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION1
On April 17, 2014, petitioner sued under the National Childhood Vaccine Injury Act, 42
U.S.C. §§ 300aa-10–34 (2006), alleging that human papillomavirus (“HPV”) vaccine
administered April 18, 2011 caused her a seizure disorder starting April 20, 2011, and a mixed
connective tissue disease, starting in September 2013. Medical records show that petitioner had
seizures predating her HPV vaccination. Petitioner does not have any support from either the
1
Because this decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this decision on the United States Court of Federal
Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116
Stat. 2899, 2913 (Dec. 17, 2002). 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. When such a decision is
filed, petitioners have 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 categories listed above, the special master shall redact such material from public
access.
medical records or expert medical opinion that her first HPV vaccination significantly
aggravated her pre-existing seizures. Moreover, petitioner does not have any support from either
the medical records or expert medical opinion that HPV vaccine caused her to have a mixed
connective tissue disease whose onset was two years later.
On September 10, 2014, the undersigned held the first telephonic status conference with
counsel to discuss the difficulty of petitioner proving that HPV vaccine significantly aggravated
petitioner’s pre-existing seizure disorder or cause a mixed connective tissue disease whose onset
was two years later. Petitioner’s counsel stated he needed to obtain additional medical records.
On March 13, 2015, the undersigned held another telephonic status conference during
which petitioner’s counsel said he would consult an expert and, if petitioner were going to
proceed, he would file an amended petition to allege significant aggravation.
On April 13, 2015, the undersigned held another telephonic status conference during
which petitioner’s counsel said he had consulted two medical experts. He moved for a decision
on the record. Respondent’s counsel stated that petitioner’s claim is not supported by the
medical records or an expert medical opinion.
The undersigned GRANTS petitioner’s motion and DISMISSES this case for failure to
prove that HPV vaccine significantly aggravated petitioner’s pre-existing seizure disorder or
caused her mixed connective tissue disease.
FACTS
Petitioner was born on June 28, 1996.
On February 3, 2010, petitioner saw Dr. Alfonso Sim. Med. recs. Ex. 4, at 31. Petitioner
had a history of sleep apnea. Id. One week previously, it took her father ten minutes to wake
her. Id. On March 3, 2010, a pediatric pulmonologist recommended she see a neurologist to rule
out a seizure disorder. Id. at 30.
On April 18, 2011, petitioner received her first HPV vaccination. Id. at 1. She went to
Brookdale University Medical Center emergency department on April 20, 2011, complaining of
a generalized tonic-clonic seizure lasting five minutes. Med. recs. Ex. 3, at 20. She denied
fever. Id. One year previously, she had an episode of stiffening of the body followed by
confusion for about 10 minutes. Id. at 29. One month previously, i.e., March 2011, she had two
episodes of staring and spacing out for one to two minutes. Id.
On December 5, 2013, petitioner saw Dr. Jaya Srinivasan-Mehta, a rheumatologist, for
mixed connective tissue disease. Med. recs. Ex. 5, at 1.
2
DISCUSSION
To satisfy her burden of proving causation in fact, petitioner must prove by preponderant
evidence: “(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 a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y
of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion
in Grant v. Secretary of Health and Human Services, 956 F.2d 1144, 1148 (Fed. Cir. 1992):
A persuasive medical theory is demonstrated by “proof of a logical
sequence of cause and effect showing that the vaccination was the
reason for the injury[,]” the logical sequence being supported by a
“reputable medical or scientific explanation[,]” i.e., “evidence in
the form of scientific studies or expert medical testimony[.]”
418 F.3d at 1278.
Without more, “evidence showing an absence of other causes does not meet petitioners’
affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
association is not sufficient to prove causation in fact. Id. at 1148.
Petitioner must show not only that but for HPV vaccine, she would not have seizures or
mixed connective tissue disease, but also that the vaccine was a substantial factor in significantly
aggravating her seizure disorder and causing her mixed connective tissue disease. Shyface v.
Sec’y of HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999).
The Vaccine Act does not permit the undersigned to rule for petitioner based on her
claims alone, “unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-
13(a)(1). In this case, petitioner’s medical records do not substantiate petitioner’s claim of
significant aggravation or causation. Moreover, petitioner has not filed an expert medical
opinion substantiating her claim of significant aggravation or causation.
The undersigned GRANTS petitioner’s motion for a decision on the written record and
DISMISSES this case for petitioner’s failure to prove by a preponderance of the evidence the
matters required in the petition. 42 U.S.C. § 300aa-13(a)(1).
CONCLUSION
This petition is DISMISSED. In the absence of a motion for review filed pursuant to
RCFC, Appendix B, the clerk of the court is directed to enter judgment herewith.2
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either
separately or jointly, filing a notice renouncing the right to seek review.
3
IT IS SO ORDERED.
April 13, 2015 s/Laura D. Millman
DATE Laura D. Millman
Special Master
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