Casteel v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-588V
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DEBORAH CASTEEL, *
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* Special Master Katherine E. Oler
Petitioner, *
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v. *
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SECRETARY OF HEALTH AND *
HUMAN SERVICES, * Filed: November 2, 2023
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Respondent. *
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Ian Fijalkovich, Elk & Elk Co., Ltd, Mayfield Heights, OH, for Petitioner
Mallori Openchowski, U.S. Department of Justice, Washington, DC, for Respondent
DECISION DISMISSING PETITION1
I. Procedural History
On May 27, 2022, Deborah Casteel (“Petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program,2 alleging she suffered injuries including
Guillain-Barré syndrome (“GBS”) from the pneumococcal 13-valent conjugate vaccine she
received on May 28, 2019. Pet. at 1, ECF No. 1.
On March 27, 2023, Respondent filed a Rule 4(c) Report stating that entitlement should be
denied. Resp’t’s Rep. at 1, ECF No. 18. More specifically, Respondent stated that
1
Because this Decision contains a reasoned explanation for the action in this case, it must be made publicly
accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine
Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that
statutory prefix).
As a threshold matter, petitioner has not met her burden of showing that she indeed
suffered from GBS, the injury on which she bases her claim…. Here, petitioner’s
contemporaneous records show that petitioner’s providers, particularly her treating
neurologist, diagnosed her condition as CIDP, not GBS. See, e.g., Pet. Ex. 4 at 26.
Petitioner suffered a relapse after “nadir,” and required several months of IVIG. In
the most recent medical record, neurologist Dr. Lanciano continued to diagnose
petitioner with CIDP, despite Petitioner’s improved condition. Pet. Ex. 4 at 46.
Petitioner also has not provided the report of a medical expert to support her claim.
In the absence of a reputable scientific or medical theory, petitioner’s case appears
to depend primarily upon statements made by certain treating physicians.
Id. at 9-10.
After Respondent’s Rule 4(c) Report, Petitioner indicated she wished to file an expert
report. Pet’r’s Status Rep., ECF No. 21. I issued a non-PDF Order setting a deadline of September
25, 2023 for Petitioner’s expert report. That deadline passed with no filings from Petitioner.
I issued an order on October 3, 2023, setting a new deadline of November 2, 2023 for
Petitioner to file an expert report.
On November 2, 2023. Petitioner filed the instant motion to dismiss her petition stating
An investigation of the facts and science supporting her case has demonstrated to
Petitioner that she will be unable to prove that she is entitled to compensation in
the Vaccine Program. In these circumstances, to proceed further would be
unreasonable and would waste the resources of the Court, the respondent, and the
Vaccine Program. Petitioner understands that a decision by the Special Master
dismissing her petition will result in a judgment against her. She has been advised
that such a judgment will end all of her rights in the Vaccine Program.
ECF No. 22 at 1.
II. Conclusion
To receive compensation in the Vaccine Program, a petitioner must prove either (1) that
she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to her vaccination, or (2) that she suffered an injury that was actually caused by a
vaccine. See §§ 13(a)(1)(A) and 11(c)(1). Moreover, under the Vaccine Act, a petitioner may not
receive a Vaccine Program award based solely on her claims alone. Rather, the petition must be
supported by either medical records or by the opinion of a competent medical expert. § 13(a)(1).
In this case, however, there is insufficient evidence in the record for Petitioner to meet her burden
of proof. Petitioner’s claim therefore cannot succeed and, in accordance with her motion, must be
dismissed. § 11(c)(1)(A).
As such, IT IS ORDERED THAT,
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Petitioner’s motion for a decision dismissing her petition is GRANTED and the petition is
hereby DISMISSED. The Clerk shall enter judgment accordingly. 3
If Petitioner wishes to preserve her right to file a civil action in this case, she must file an
election in writing with the Clerk of Court indicating her intent to file a civil action for damages
within 90 days after entry of judgment. See Vaccine Rule 12(a).
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
3