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

REISSUED FOR PUBLICATION
DEC 30 2021
OSM
U.S. COURT OF FEDERAL CLAIMS
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 8, 2021
* * * * * * * * * * *
* * Unpublished
DEBORAH L. COPINGER, *
* No. 21-1526V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Dismissal; Insufficient Proof.
*
Respondent. *
* * * * * * * * * * * * *
Deborah Copinger, pro se, for petitioner.
Alexa Roggenkamp, U.S. Department of Justice, for respondent.
DISMISSAL DECISION 1
On June 30, 2021, Deborah Copinger (“petitioner”), filed a petition for compensation
under the National Vaccine Injury Compensation Program (“Vaccine Program or Program”). 2
Petitioner alleges that she suffered from tightness in throat, weakness and tingling in legs and
arms, balance issues while walking, body aches, burning mouth, tongue, throat, and stomach as
well as muscoskeletal issues such as plantar fasciitis and a heel spur as a result of receiving the
Fluzone vaccine in her left deltoid on October 23, 2019. Petition (ECF No. 1).
Petitioner also filed a number of exhibits, including proof of vaccination, a selection of
medical records, and a VAERS report. Petitioner’s Exhibit (“Pet. Exs.”) 1-40. On September 9,
2021, I held an initial status conference with petitioner and respondent’s counsel. Scheduling
Order (ECF No. 13). During the status conference, I explained petitioner was alleging a cause-
in-fact claim, which would require her to establish each of the Althen criteria by preponderant
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting 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). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.
2
The National Vaccine Injury Compensation Program is set forth in 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-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
evidence. Id. Further, I provided a copy of Althen to petitioner. I also explained that a diagnosis
is a pre-requisite before considering vaccine causation. See Broekelschen v. Sec'y of Health &
Hum. Servs., 618 F.3d 1339, 1346 (Fed. Cir. 2010). Petitioner must show that he suffers from a
“defined” and “medically recognized” injury, not “merely…a symptom or manifestation of an
unknown injury.” See Lombardi v. Sec'y of Health & Hum. Servs., 656 F.3d 1343, 1353 (Fed.
Cir. 2011). Medical recognition of the injury claimed is critical. Id. As the Federal Circuit
reiterated in Lasnetski, a “petitioner needs to make a showing of at least one defined and
recognized injury.” Lasnetski v. Sec’y of Health & Human Servs., 696 Fed. Appx. 497, 504 (Fed.
Cir. 2017) (emphasis added) (citing Lombardi at 1353). Because petitioner had set forth a
collection of symptoms without a unifying diagnosis and claimed that all of the symptoms began
at various points after she received the flu vaccine, I set a deadline of September 14, 2021 for
petitioner to file a status report indicating the progress she made in retaining counsel, or to
voluntarily dismiss her claim. Scheduling Order (ECF No. 13).
On October 15, 2021, my law clerk communicated with petitioner that she had missed the
September 14, 2021 deadline for a status report. Remark, Oct. 15, 2021. On October 18, 2021, I
entered a Scheduling Order granting petitioner additional time to file a letter from her treating
physician regarding vaccine causation and a status report on the progress she has made in
retaining an attorney or to voluntarily dismiss her claim. Scheduling Order (ECF No. 14).
Petitioner filed two letters on November 4, 2021. (ECF Nos. 16, 17). One letter addressed,
“Letter Regarding Counsel Attempt,” explained that she had contacted numerous attorneys on
the public list provided on the Court’s website and others without success in obtaining
representation for her claim.
A second status conference was held on December 7, 2021. Before the conference I read
all of the records that were filed by petitioner. During the status conference, where petitioner
again appeared pro se, and Ms. Alexa Roggenkamp appeared on behalf of respondent. I
reviewed the medical records and discussed the case in depth with both parties during the status
conference. Petitioner had a wide array of symptoms such as burning in the throat, and mouth,
weakness and tingling in the legs, pain in her feet, right heel pain, and balance problems. Pet.
Exs. 1-16. As I explained in the status conference almost all vaccine cases involve autoimmune
conditions and occasionally allergic or hypersensitivity reaction. I also explained that her
records do not demonstrate that she developed a neurologic autoimmune disorder such as GBS or
MS as confirmed by neurologist, Dr. Wolfe, or even hepatitis as suggested by Dr. Dhillon.
Petitioner had submitted documentation of an appointment with a neurologist, Dr. James Wolf,
where it was noted that she “listed 23 somatic symptoms that she typed along with comments
about consequences of her symptoms.” Pet. Ex. 10. His assessment was, “There are no features
indicating that [petitioner] has a neurological illness to explain her symptoms of numbness,
weakness or multifocal pain….she was relieved when I told her there are no features to suggest
that she has multiple sclerosis or Guillain-Barre syndrome.” Id. The medical records from her
podiatrist do show a diagnosis of plantar fasciitis and bone spurs in the heel. Pet. Ex. 1-10. An
MRI demonstrated a tear in the plantar fascia. Pet. Ex. 1-19.
Petitioner spoke about when she was given Levaquin sometime in December 2019,
apparently when she was hospitalized and diagnosed with diverticulitis, a diagnosis that she
debated. Those medical records were never submitted, but there are multiple references to
Levaquin and physicians suggesting a causal relationship between tendinopathy and foot pain as
a consequence of taking Levaquin which is known to cause such problems. Although, petitioner
indicates that her symptoms arose after the flu shot, conditions such as plantar fasciitis with a
torn plantar fascia, calcaneal spurring, and tendonitis in the foot are not associated with vaccine
causation. She also had an EMG/NCS which demonstrated bilateral carpal tunnel syndrome, also
not likely caused by a vaccine. Pet. Ex. 1-37.
In this case, petitioner’s records do not indicate that her physicians have defined a
diagnosis or one that would be considered autoimmune in nature. The letter from her allergist
(ECF No. 17) outlines a diagnosis of hypobetalipoproteinemia, a rare genetic liver disease which
makes it difficult for her to process things like fat and cholesterol. To date, petitioner has not
filed additional medical records in support of this condition and there has been no suggestion that
it is related to receipt of the vaccine or causative of her collection of symptoms.
To receive compensation in the Vaccine Program, petitioners have the burden of proving
either: (1) that the vaccinee suffered a “Table Injury,” i.e., an injury beginning within a specified
period of time following receipt of a corresponding vaccine listed on the Vaccine Injury Table (a
“Table injury”) or (2) that the vaccinee suffered an injury that was caused-in-fact by a covered
vaccine. §§ 13(a)(1)(A); 11(c)(1). In this case, petitioner was not alleging a Table Injury and
therefore, must demonstrate the vaccine was the cause-in-fact of her alleged injuries. Before
considering vaccine causation, a “petitioner needs to make a showing of at least one defined and
recognized injury,” Lasnetski v. Sec’y of Health & Human Servs., 696 Fed. Appx. 497, 504 (Fed.
Cir. 2017) (emphasis added) (citing Lombardi at 1353). In this case, petitioner has been unable
to identify one defined and recognized injury. Further, to satisfy her burden of proving causation
in fact, petitioner must show 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 Health & Human Servs., 418 F.
3d 1274, 1278 (Fed. Cir. 2005).
Moreover, under the Vaccine Act, the Vaccine Program may not award compensation
based on the petitioner’s claims alone. Rather, the petitioner must support the claim with either
medical records or the opinion of a competent medical expert. § 13(a)(1). In this case, the
medical records are insufficient to establish entitlement and petitioner’s treating physicians have
not provided opinions that support a finding of vaccine causation under Althen. No reports have
been filed from consulting experts and petitioner had no plan for obtaining same as she had not
been able to obtain representation by counsel.
During the status conference I discussed how the Petitioner has not made any progress in
putting together a case that would eventually lead to a successful claim, mainly because there is
no clear diagnosis to explain her collection of symptoms and multiple alternative diagnoses that
explain many of them. No expert report to explain the diagnosis or propose a theory of vaccine
causation has been filed. Therefore, I informed the petitioner that there appeared to be no basis
upon which she could be successful in proving a vaccination claim. I indicated that the case
should be dismissed, and she agreed.
Thus, this matter is DISMISSED for insufficient proof. The Clerk of Court shall
enter judgment accordingly.
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master