Callaghan v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1032V
Filed: August 4, 2021
UNPUBLISHED
EVONNE CALLAGHAN, on behalf of Special Master Horner
K.B.,
Petitioner, Petitioner’s Motion for Decision
v. Dismissing Petition; Hepatitis A
(Hep A) vaccine; Human
SECRETARY OF HEALTH AND Papilloma Virus (HPV) vaccine;
HUMAN SERVICES, dysautonomia; Postural
Orthostatic Hypertension
Respondent. (POTS)
Anthony James Bucher, Gatlin Voelker, PLLC, Covington, KY, for petitioner.
Ida Nassar, U.S. Department of Justice, Washington, DC, for respondent.
DECISION 1
On July 17, 2019, petitioner filed a claim under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012), on behalf of her minor daughter, K.B. (ECF
No. 1.) Petitioner alleged that K.B. suffered postural orthostatic tachycardia syndrome
and neuropathic pain symptoms as the result of her June 28, 2018 Human Papilloma
Virus (“HPV”) and/or Hepatitis A vaccinations. (ECF No. 1.) On November 13, 2019,
respondent filed his Rule 4 report, recommending against compensation. (ECF No. 12.)
Following a round of expert reports, (see ECF Nos. 21-24, 31-34), I held a Rule 5
conference where I explained based on prior Program experience that:
A significant body of literature exists that explores whether POTS may be
autoimmune and, if so, whether it can be caused by the HPV vaccine. So
far, it has not appeared as though that research has borne out either of
1
Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
these hypotheses. Upon my preliminary review, it did not appear that Dr.
Henrickson was raising any novel theory of causation. Accordingly, if Dr.
Henrickson is to file a supplemental report, it will need to continue to
address the core issues of the state of this area of research. Without more,
expounding on peripheral areas of disagreement with respondent’s experts
will be unlikely to resolve the case.
(ECF No. 35, pp. 1-2.) Petitioner’s counsel requested time to confer with his client. On
August 3, 2021, petitioner filed a Motion for a Decision Dismissing her Petition. (ECF
No. 37.) Petitioner indicated that “[a]n 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,” and that “to proceed further would be
unreasonable and would waste the resources of the Court, the respondent and Vaccine
Program.” (Id. at 1.) Petitioner further stated that she “understands that a decision by
the Special Master dismissing her petition will result in a judgment against her.
[Petitioner] has been advised that such a judgment will end all of her rights in the
Vaccine Program. Petitioner understands that she may apply for costs once her case is
dismissed and judgment is entered against her.” (Id. at 1.)
To receive compensation in the Vaccine Program, petitioner must prove either
(1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury
Table – corresponding to a covered vaccine, or (2) that she suffered an injury that was
actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). 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). The Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the undersigned from
ruling for petitioner based solely on her allegations unsubstantiated by medical records
or medical opinion.
Neither K.B.’s medical records nor the expert report filed by petitioner support
petitioner’s allegations by a preponderance of the evidence. Moreover, respondent filed
competing expert reports rebutting petitioner’s claim. Accordingly, the undersigned
GRANTS petitioner’s Motion for Decision Dismissing Petition and DISMISSES this
petition for failure to establish a prima facie case of entitlement to compensation.
2
CONCLUSION
This case is now DISMISSED. The clerk of the court is directed to enter
judgment in accordance with this decision. 2
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
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