Colpaert v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
ERIKA COLPAERT, next friend of *
R.C., a minor, *
* No. 17-1307V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: April 22, 2019
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement, dismissal
*
Respondent. *
*********************
Scott W. Rooney, Nemes, Rooney P.C., Farmington Hills, MI, for petitioner;
Mallori B. Openchowski, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Erika Colpaert filed a petition on behalf of her child, R.C., under the
National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa—10 through 34, on
September 22, 2017. The petition alleged that the inactivated poliovirus (“IPV”)
vaccination that R.C. received on August 19, 2014, caused R.C. to suffer febrile
seizures. See Petition, filed June 22, 2017, at 1-2. On April 15, 2019, Ms.
Colpaert moved for a decision dismissing her petition.
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The E-Government Act, 44 § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website.
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.
I. Procedural History
Ms. Colpaert filed a petition on behalf of R.C. on September 22, 2017. Ms.
Colpaert finished submitting R.C.’s medical records on April 5, 2018.
On July 16, 2018, the Secretary filed his Rule 4 report opposing a finding of
entitlement. The Secretary stated that none of R.C.’s treating physicians proposed
a connection between the vaccinations and R.C.’s febrile seizures and had in fact
continued administering vaccinations, including another dose of the IPV
vaccination. The Secretary also noted that Ms. Colpaert had not yet proposed a
medical theory for how the vaccinations caused R.C.’s injuries or had not
addressed R.C.’s underlying epilepsy as an alternate cause.
At the Rule 5 status conference on July 23, 2018, the parties agreed to
proceed to the expert report phase. The undersigned then issued expert
instructions. Ms. Colpaert’s expert reports deadline was later set for December 11,
2018.
After some difficulty contacting her experts, Ms. Colpaert proposed filing
her expert reports by February 1, 2019. After the deadline had passed, Ms.
Colpaert advised by informal communication that she would not be filing any
expert reports and anticipated dismissing the case. On April 15, 2019, Ms.
Colpaert moved for a decision dismissing her petition.
This matter is now ready for adjudication.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program, petitioners must prove either 1) that petitioner suffered a “Table Injury” –
i.e., an injury falling within the Vaccine Injury Table – corresponding to one of
petitioner’s vaccinations, or 2) that petitioner suffered an injury that was actually
caused or significantly aggravated by a vaccine. See §§ 300aa—13(a)(1)(A) and
300aa—11(c)(1). An examination of the record did not uncover any evidence that
R.C. suffered a “Table Injury.” Further, the record does not contain other
persuasive evidence indicating that R.C.’s injuries are vaccine-caused or
significantly aggravated by a vaccine.
Under the Act, a petitioner may not be given a Program award based solely
on petitioner’s claims alone. Rather, the petition must be supported by either
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medical records or by the opinion of a competent physician. § 300aa—13(a)(1). If
the medical records do not sufficiently support a petitioner’s claim, a medical
opinion must be offered in support.
In the instant motion, Ms. Colpaert stated that “[a]n investigation of the facts
and science supporting this case has demonstrated to petitioner that she will be
unable to prove that the minor is entitled to compensation in the Vaccine
Program.” A review of the record supports the conclusion that Ms. Colpaert has
not proposed a medical theory connecting the vaccinations to R.C.’s injuries and
that R.C.’s treating physicians did not relate the vaccinations to R.C.’s injuries.
Accordingly, the undersigned finds that Ms. Colpaert have not
demonstrated that the IPV vaccination “actually caused” or “significantly
aggravated” R.C.’s injuries.
Thus, the Motion for Decision is GRANTED and this case is
DISMISSED for insufficient proof. The Clerk shall enter judgment
accordingly.
Any questions may be directed to my law clerk, Andrew Schick, at (202)
357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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