Leaumont v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
BOBBIE LEAUMONT, *
* No. 18-258V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: October 6, 2022
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement; dismissal.
*
Respondent. *
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John R. Howie, Jr., Howie Law, P.C., Dallas, TX, for petitioner;
Camille M. Collett, United States Dep’t of Justice, Washington, D.C., for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Bobbie Leaumont alleged that the influenza (“flu”) vaccine she received on
October 6, 2015, caused her to suffer from transverse myelitis. Pet., filed Feb. 20,
2018, at Preamble; ¶ 40. On October 6, 2022, Ms. Leaumont moved for a decision
dismissing her petition.
I. Procedural History
Bobbie Leaumont (“petitioner”) filed a petition on February 20, 2017. After
petitioner filed her initial medical records, the Secretary (“respondent”) filed his
Rule 4(c) report on March 19, 2019, contesting entitlement. A status conference
1
The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires the Court to post this decision to its website. This
posting will make the decision available to anyone with 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 appear in the document posted on the website.
was then held on April 24, 2019. Petitioner was then ordered to file an expert
report in support of her case.
Petitioner filed reports from Dr. Steven Lovitt, Dr. John Freiberg, Dr. Jesus
Lovera, and Dr. Ricardo Sorensen. Respondent filed expert reports authored by
Dr. Norman Werdiger and Dr. Robert Fujinami. The petitioner then filed
supplemental reports, and respondent filed responsive reports.
During a March 28, 2022 status conference, petitioner indicated she did not
plan to file any additional reports, and respondent requested a preliminary
assessment of the case.
On September 19, 2022, the undersigned issued tentative findings. The
undersigned tentatively found that Ms. Leaumont had not met her burden of
establishing (1) molecular mimicry as a persuasive theory explaining how a flu
vaccine can cause TM, and (2) that onset of TM two days after a flu vaccination is
an appropriate interval in which an adaptive immune response would manifest.
A status conference was held on October 6, 2022 to discuss the tentative
findings. Later that day, petitioner moved for a decision dismissing her petition.
As such, this case is ripe for adjudication.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), a petitioner must prove either 1) that the
vaccinee suffered a “Table Injury” – i.e., an injury falling within the Vaccine
Injury Table – corresponding to one of the vaccinations, or 2) that the vaccinee
suffered an injury that was actually caused 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 the 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).
In this case, petitioner filed medical records and expert reports in support of
her claim, but nonetheless, wishes to have her claim dismissed and judgment
entered against her. Petitioner stated her intent to elect to accept the Program
judgment against her, pursuant to 42 USC § 300aa-21(a)(2), and noted she does not
intend to protect her rights to file a civil action in the future.
2
To conform to section 12(d)(3), a decision must “include findings of fact and
conclusions of law.” Here, although the parties were in the process of presenting
arguments, the evidence weighs against a finding that petitioner developed TM
because of a vaccine. In an Off-Table case, petitioners must show that the interval
between the vaccination and the onset of her condition is appropriate for inferring
causation. See Bazan v. Sec’y of Health and Hum. Servs., 539 F.3d 1347, 1352
(Fed. Cir. 208). Petitioners must also produce a theory explaining how a vaccine
can cause her condition. See Boatmon v. Sec’y of Health and Hum. Servs., 941
F.3d 1351 (Fed. Cir. 2019). As discussed, petitioner has not established her
burden.
Thus, the Motion for Decision is GRANTED and this case is
DISMISSED WITH PREJUDICE for insufficient proof. The Clerk shall
enter judgment accordingly. See Vaccine Rule 21(b).
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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