Seid v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION
APR 5 2019
OSM
U.S COURT OF FEDERAL CLAIMS
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OFFICE OF SPECIAL MASTERS
***** ****** ********* *
HANANE M. SEID, *
* No. 17-604V
Petitioner, * Special Master Christian J. Moran
v. *
*
SECRETARY OF HEALTH * Filed: March 4, 2019
AND HUMAN SERVICES, *
*
Respondent. *
**** ********** * ** * * **
Hanane M. Seid, pro se.
Robert P. Coleman III, United States Dep't of Justice, Washington, DC, for
respondent.
DECISION DISMISSING PETITION1
Ms. Seid filed her petition for compensation under the National Childhood
Vaccine Injury Act, 42 U.S.C. §300aa-10 through 34, on May 5, 2017. Ms. Seid
claimed that she suffered from unspecified injuries following her receipt of a flu
vaccine on September 21, 2013. Throughout the pendency of this proceeding, Ms.
Seid has not complied with the undersigned's orders to prosecute her case by
presenting evidence that favors her claims of causation. On November 28, 2018,
the undersigned issued an order for Ms. Seid to show cause for why her claim
should not be dismissed for her failure to prosecute the case and comply with the
undersigned's orders. In response, Ms. Seid moved for a ruling on the record on
1
Because this ruling contains a reasoned explanation for the action in this case, the
undersigned is required to post it on the United States Court of Federal Claims' website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the ruling will be
available to anyone with access to the internet. In accordance with Vaccine Rule 18(b),
petitioners have 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, the
undersigned agrees that the identified material fits within this definition, the undersigned will
redact such material before posting the ruling.
Fed Ex 8136 4199 5996
January 23, 2019. Ms. Seid argued that the evidence in the record "should support
a ruling in favor of the petitioner." For the reasons explained below, the
undersigned disagrees.
Brief Factual Summary
The facts smrounding Ms. Seid's condition were not well-developed by the
petitioner and must be gleaned only from her affidavit and one set of medical
records, only 32 pages in length.
Ms. Seid was 41 years old when she received an influenza vaccine on
September 21, 2013. Immunization Record at 2. 2 By all accounts in the record,
Ms. Seid was healthy following the vaccination until late April 2014. Kaiser
Foundation Hospitals Medical Records ("Medical Records") at 14. She presented
to the emergency room on May 1, 2014, with one week of diarrhea, abdominal
pain, nausea, and headache. Id. Her physicians attributed her condition to viral
gastroenteritis. Id. at 20. On May 4, 2014, Ms. Seid returned to urgent care with
worsened symptoms including abdominal pain and tactile fevers and was then
found to have acute pancreatitis. Id. Ms. Seid returned home against medical
advice that same day. Id. at 21.
On May 8, 2014, Ms. Seid presented again to the local emergency
department with reports of numbness and weakness. Id. at 21. The weakness
developed into an ascending paralysis and Ms. Seid was eventually intubated to
protect her airway. Id. By the end of May 2014, Ms. Seid's movement was
limited to her neck and eyelids. Id. at 29.
The early medical records repeatedly identify GBS as the most likely cause
of Ms. Seid's condition. Id. at 13, 14, 16, 20, 21, 22, 24, 29, 31. Ms. Seid's
physicians repeatedly found it noteworthy that the onset of her paralysis
immediately followed her viral gastritis and pancreatitis. Id. at 6, 7, 21, 22, 23, 26.
And in fact, her treating physicians causally attributed the onset of the neurological
disease to the infection, noting that her condition was most consistent with "GBS
or AIDP following antecedent infectious etiology." Id. at 22. See also id. at 32
(noting that her antecedent dianhea was supportive of a GBS diagnosis). Although
GBS was identified as the most likely explanation of Ms. Seid's condition, the
medical records make certain that GBS was never conclusively identified as the
2
Ms. Seid's exhibits are not numbered. Accordingly, they are described by their
contents.
2
cause, but instead as the most likely explanation in the differential diagnosis. Id. at
13, 14, 16, 20, 21, 22, 24, 29, 31. Because it was the physicians' primary concern,
Ms. Seid was transfe1Ted to another facility to begin IVIG and plasmapheresis
treatment for possible GBS. Id. at 22.
Subsequent EMG and MRI testing in June 2014 resulted in physicians
concluding that Ms. Seid was, instead of GBS, more likely suffering from anterior
horn cell disease. 3 Id. at 34-39. The cause of Ms. Seid's condition was never
confirmed, despite follow-up testing by the CDC and the Columbia University
Viral Detection Lab, which "returned negative for further clarification of exact
etiology." Id. at 34. However, the physicians ultimately concluded that the most
likely explanation was that her condition was the result of an "unknown polio-like
virus." Id. at 34, 38.
The most recent records filed by Ms. Seid do not illuminate her current
condition, but do indicate that as of the summer of 2014, she was undergoing
rehabilitation with an uncertain prognosis. Id. at 37-38. In her petition, she notes
that "she is unable to stand with the support of a walker and remains unable to
fully function in her everyday life." Petition at ii 7.
Procedural History
Ms. Seid, prose, filed her petition for compensation on May 5, 2017. She
alleged that the flu vaccine she received on September 21, 2013 caused her to
suffer from the neurological condition that manifested in May 2014.
The procedural history of Ms. Seid's case was detailed in the order to show
cause issued on November 28, 2018 and is restated here.
During the initial status conference held on June 8, 2017, the undersigned
communicated to the petitioner that she would need to obtain an expert report.
Order, issued June 12, 2017. This was because, in the undersigned's experience in
the Vaccine Program, the long delay between the vaccination date and the onset of
her condition raised serious questions about petitioner's claim of causation,
questions that could only be addressed by the petitioner providing expert opinion
from a qualified individual. The undersigned ordered the petitioner to begin the
process of identifying a qualified expert and to file a status report on her progress
by Monday, July 24, 2017.
3
The anterior horn is the section of the spinal cord containing motor neurons.
3
Ms. Seid did not comply with the July 24, 2017 deadline and on August 1,
201 7, the undersigned ordered her to file a status report by Thursday, August 31,
2017. Order, issued Aug. 1, 2017. The petitioner was warned that her failure to
respond may result in an order to show cause.
On August 30, 2017, Ms. Seid notified the court that she was now being
represented by attorney Carl Kadlic, though she noted that he was still in the
process of applying for admission to the Court of Federal Claims' Bar. The
undersigned noted that until Mr. Kadlic was admitted to practice in this court, he
would not be permitted to file a notice of appearance in Ms. Seid's vaccine
petition. Order, issued Sep. 5, 2017.
On that same date, Ms. Seid filed a status report stating that she had obtained
the services of Dr. Jonathan Rutchik to provide an opinion on causation. Ms. Seid
stated that due to the amount of records involved, the preparation of the report
would take "some time" and requested that a status conference be scheduled at
least 90 days from the date of the status report. Pet'r's Rep., filed Aug. 30, 2017.
A status conference was set for December 14, 2017. Order, issued Sep. 20, 2017.
On September 27, 2017, the undersigned issued proposed instructions for
any expert opinion provided in Ms. Seid's case. The order provided that the
instructions would become final if no objections or comments were made prior to
October 10, 2017. Neither paity objected or commented on the proposed
instructions.
A status conference was held on January 8, 2018. During the status
conference, the petitioner stated that her previously retained expert, Dr. Rutchik,
would not be able to provide an opinion due to the petitioner's financial
constraints. Order, issued Jan. 9, 2018. The petitioner requested additional time to
secure another expert opinion. The petitioner was ordered to file a status report by
Tuesday, March 13, 2018, with an update on her efforts to secure another expert
opinion. The petitioner was again reminded to determine whether she would like
to continue pro se or have an attorney enter an appearance on her behalf.
On March 19, 2018, Ms. Seid filed a status report stating, again, that she
would be unable to retain Dr. Rutchik. The petitioner requested that a deadline be
set for her to file a status report in 90 days so that she could have sufficient time to
"either retain an expe1t or decide if this case is feasible to pursue."
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The next day, the undersigned ordered the petitioner to file a status report by
June 20, 2018, with an update on her progress in obtaining an expert witness.
Order, issued Mar. 20, 2018. Ms. Seid was also provided additional information
on her various options for exiting the vaccine program.
On June 18, 2018, Ms. Seid filed a status report stating that she was
"thinking to withdraw the case due to the costs associated with an expert report."
The petitioner requested additional time to decide how to proceed.
On June 25, 2018, the undersigned ordered the petitioner to file a status
report on her next steps if she had not exited the Vaccine Program by August 8,
2018.
On August 13, 2018, Ms. Seid filed a status report stating that she was "still
working on the options of exiting the vaccine program" and requesting "at least"
three months to make her decision. On August 21, 2018, the undersigned set a
status conference for September 4, 2018, to discuss the case with the petitioner.
During the status conference, Ms. Seid stated that she anticipated
withdrawing from the Program but stated that she may still attempt to file an expert
report. Order, issued Sep. 5, 2018. The undersigned noted that it had been nearly
15 months since Ms. Seid first stated that she was in the process of obtaining an
expert report and that if Ms. Seid was going to pursue her petition by filing an
expert report, she would need to actually do so. Otherwise, she should withdraw
her petition. The undersigned ordered Ms. Seid to file her expert report by October
4, 2018. Ms. Seid was warned that a failure to comply with this deadline would
result in an order to show cause for why Ms. Seid's case should not be dismissed.
Because Ms. Seid failed to comply with the order to file an expert report, the
undersigned issued an order to show cause for why Ms. Seid's petition should not
be dismissed. Order, issued Nov. 28, 2018. In the order, petitioner was warned
that she must comply with orders to prosecute her case or face dismissal. Id. at 3
(citing Padmanabhan v. Sec'y of Health & Human Servs., 638 Fed. App'x 1013
(Fed. Cir. 2016); Sapharas v. Sec'y of Health & Human Servs., 35 Fed. Cl. 503
(1996); Tsekouras v. Sec'y of Health & Human Servs., 26 Cl. Ct. 439 (1992),
affd, 991 F.2d 819 (Fed. Cir. 1993) (table); Vaccine Rule 21(c)).
The day before Ms. Seid's show of cause was due, she filed a brief motion
requesting that a ruling be made on the record. Pet'r's Mot., filed Jan. 23, 2019.
In her motion, she noted that "even though the petitioner could not be able to
5
provide the medical expert due to a financial constraint," the record as submitted
"should support a ruling in favor of the petitioner." Id.
On February 12, 2019, the Secretary filed a brief response. In his response,
the Secretary argued that preponderant evidence did not support a conclusion that
the vaccination caused Ms. Seid's condition and that, accordingly, the petition
should be dismissed. Resp't's Resp., filed Feb. 12, 2019, at 3-6.
Analysis and Conclusion
Petitioners are required to establish their cases by a preponderance of the
evidence. 42 U.S.C. § 300aa-13(1)(a). The preponderance of the evidence
standard requires a "trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the judge of the fact's existence." Moberly v. Sec'y of
Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted).
Ms. Seid's petition contains no evidence from which the undersigned can
conclude that her condition is the result of the vaccination she received on
September 21, 2013. The only relationship in the record between the vaccination
and the onset of her condition is the fact that her condition followed the
vaccination. "Temporal association is not sufficient, however, to establish
causation in fact." Grant v. Sec'y of Health & Human Servs., 956 F.2d 1144, 1148
(Fed. Cir. 1992). Even more, the temporal association between the vaccination and
the onset of Ms. Seid's condition was hardly proximate. Thirty-two weeks passed
between the vaccination and the onset of her paralysis. In the undersigned's
experience with similar disorders, this timeframe is inconsistent with a finding of
causation. And indeed, the physicians treating Ms. Seid never even considered her
vaccination as a possible cause of the disorder.
The physicians, however, did identify another possible cause, a viral
infection. In fact, the physicians stated with some certainty that a viral infection
was what caused Ms. Seid's illness. See Medical Records at 38 (concluding, in
one of the most recent medical records, that the cause of Ms. Seid's anterior horn
cell disease was "likely from unknown polio-like viral etiology"). The
undersigned sees no reason to doubt the conclusion of Ms. Seid's physicians. See
Capizzano v. Sec'y of Health & Human Servs., 440 F.3d 1317, 1326 (Fed. Cir.
2006) (holding that special masters must consider the view of treating physicians).
6
Ms. Seid's case is tragic. The medical records show that she was a young
and healthy woman preparing for her honeymoon when she was struck down by an
illness that has, perhaps permanently, changed her life and the lives of her loved
ones. The uncertainty regarding how Ms. Seid's illness came to be can only
amplify their frustration. However, when Congress established the Vaccine Act, it
directed special masters to only award compensation from the Vaccine Trust Fund
when petitioners provide preponderant evidence of a vaccine injury. Ms. Seid has
not done so here despite having been provided a full and fair opportunity to present
her case. Accordingly, the undersigned must deny her petition for compensation.
The Clerk's Office is instructed to enter judgment in accord with this
decision.
IT IS SO ORDERED.
oran
Special Master
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