Milocik v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1304V
Filed: March 24, 2016
Not to be Published
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MICHAEL MILOCIK, *
*
Petitioner, * Petitioner’s motion to dismiss
* in order to sue civilly granted;
v. * influenza vaccine; pain at vaccine
* site; sore throat; cough; hoarseness;
SECRETARY OF HEALTH * severe headaches; numbness;
AND HUMAN SERVICES, * general discomfort; vision changes
*
Respondent. *
*
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Michael Milocik, Jackson, NJ, for petitioner (pro se).
Darryl R. Wishard, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION 1
On October 30, 2015, petitioner filed a petition pro se under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that influenza (“flu”) vaccine
administered October 4, 2015 caused him pain at the injection site, cough, sore throat,
hoarseness, and severe headaches. Pet. at 1. He also alleges numbness, general discomfort, and
vision changes. Id. at 2. Attached to the petition is a note, dated September 8, 2014, from
petitioner’s renal specialist, Dr. Daniel Brouder, stating that petitioner was in kidney failure,
stage 6, and receiving dialysis three days a week for about five hours per treatment session.
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Because this decision contains a reasoned explanation for the special master’s action in this case, the
special master intends to post this decision 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). Vaccine Rule 18(b) states that all decisions of the special
masters will be made available to the public unless they contain trade secrets or commercial or financial
information that is privileged and confidential, or medical or similar information whose disclosure would
constitute a clearly unwarranted invasion of privacy. When such a decision is filed, petitioners have 14
days to identify and move to redact such information prior to the document’s disclosure. If the special
master, upon review, agrees that the identified material fits within the categories listed above, the special
master shall redact such material from public access.
On February 23, 2016, the undersigned held the first telephonic status conference, which
was recorded, with the parties. Petitioner said he had telephoned an attorney who said he would
contact another attorney to see if he could represent him, but the first attorney never called back.
Prior to the conference, the undersigned had sent petitioner a list of vaccine attorneys to enable
petitioner to contact any of the attorneys on the list to represent him. Petitioner said he would
file proof of his immunization, which he did on March 10, 2016.
On March 24, 2016, the undersigned held another telephonic status conference, which
was recorded, with the parties. The undersigned asked petitioner if he had found an attorney to
represent him. Petitioner replied he did not want an attorney. The undersigned said he had the
right to represent himself and asked him to file his medical records. Petitioner said he did not
want to file his medical records. He wanted to sue Walgreens (the vaccine administrator) and
Sanofi (the vaccine manufacturer). The undersigned said that petitioner had the right to move to
dismiss so that he could sue the vaccine administrator and vaccine manufacturer in civil court.
The undersigned then asked if petitioner was moving orally to dismiss and he replied that he
was. The undersigned stated she would grant his motion and after the dismissal decision was
filed, the court would enter judgment. Then, within 90 days of the entry of judgment, petitioner
must file an election to sue civilly in order to sue the vaccine administrator and/or the vaccine
manufacturer. 42 U.S.C. § 300aa-21(a)(2).
The undersigned grants petitioner’s oral motion to dismiss and dismisses this case for
failure to make a prima facie case of causation in fact. Petitioner may sue the vaccine
administrator and/or the vaccine manufacturer if he files an election to sue civilly within 90 days
of the entrance of judgment.
DISCUSSION
To satisfy his burden of proving causation in fact, petitioner must prove 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 HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion
in Grant v. Secretary of Health and Human Services, 956 F.2d 1144, 1148 (Fed. Cir. 1992):
A persuasive medical theory is demonstrated by “proof of a logical
sequence of cause of and effect showing that the vaccination was
the reason for the injury [,]” the logical sequence being supported
by a “reputable medical or scientific explanation[,]” i.e., “evidence
in the form of scientific studies or expert medical testimony[.]”
418 F.3d at 1278.
Without more, “evidence showing an absence of other causes does not meet petitioners’
affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
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association is not sufficient to prove causation in fact. Id. at 1148.
Petitioner must show not only that but for his flu vaccination, he would not have had sore
throat, cough, numbness, severe headaches, general discomfort, hoarseness, and vision changes,
but also that his flu vaccination was a substantial factor in causing these symptoms. Shyface v.
Sec’y of HHS 165 F.3d 1344, 1352 (Fed. Cir. 1999).
The Vaccine Act does not permit the undersigned to rule for petitioner based on his
claims alone, “unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-
13(a)(1). In the instant action, petitioner has chosen not to file any medical records or expert
medical opinion. Instead, he wants to pursue a civil action against Walgreens and Sanofi, the
vaccine administrator and vaccine manufacturer, respectively.
The undersigned GRANTS petitioner’s motion to dismiss and DISMISSES this case for
petitioner’s failure to make a prima facie case under the Vaccine Act.
CONCLUSION
This petition is DISMISSED. In the absence of a motion for review filed pursuant to
RCFC, Appendix B, the clerk of the court is directed to enter judgment herewith. 2
IT IS SO ORDERED.
Dated: March 24, 2016 ________________________
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(b), entry of judgment can be expedited by each party, either jointly or
separately, filing a notice renouncing the right to seek review.
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