Walker v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
*
SAHARA WALKER, *
* No. 16-543V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: August 25, 2020
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement; dismissal.
*
Respondent. *
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Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioners;
Sarah C. Duncan, United States Dep’t of Justice, Washington, D.C., for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION 1
Melissa Roglitz-Walker alleged that the human papillomavirus (“HPV”),
Tdap, and meningococcal conjugate (“MCV”) vaccinations her child, Sahara
Walker, received on September 25, 2013, caused her to develop postural
tachycardia syndrome (“POTS”), neurocardiogenic syncope, orthostatic
hypotension, and autonomic neuropathy. Pet., filed May 3, 2016, at 1-2. Once
Sahara Walker reached the age of majority, she was substituted in as the named
petitioner on October 11, 2019. On August 10, 2020, Ms. Walker moved for a
decision dismissing her petition.
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The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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
Melissa Roglitz-Walker filed a petition on behalf of her child, Sahara
Walker, on May 3, 2016. Sahara Walker (“petitioner”) was then substituted as the
named petitioner in this case on October 11, 2019. After petitioner filed her initial
medical records, the Secretary filed his Rule 4(c) report on August 11, 2016,
contesting entitlement.
After additional records were filed, petitioner filed expert reports supporting
her claim from Dr. Velugubanti, Dr. Steinman, and Dr. Miglis. In response, the
Secretary filed expert reports from Dr. Kaufmann and Dr. MacGinnitie. The
development of the case through expert reports continued between late 2016 to late
2019. The expert report phase of the case concluded with supplemental expert
reports from Dr. Kaufmann and Dr. MacGinnitie filed by the Secretary on
November 11, 2019. A status conference was then held, after which petitioner
continued to develop her case with additional medical literature.
The undersigned then issued an order for briefs in advance of potential
adjudication on February 13, 2020, which was then reviewed in a status conference
held on February 27, 2020. Petitioner filed her brief on April 20, 2020, but then
moved for a decision dismissing her petition on August 10, 2020, stating that, in
light of litigation currently being initiated against Merck involving injuries to
Gardasil vaccine recipients, petitioner “wishes to pursue a third party action in
district court against Merck directly.” Pet’r’s Mot., filed Aug. 10, 2020, ¶ 3.
Petitioners add that “[t]his choice should not be viewed in any way that Petitioner
does not believe in the merits of [her] claim,” but that she wishes to have a
judgment entered against her so that she may pursue a separate civil action. Id.
The Secretary did not file a response to this motion. This matter is now ready for
adjudication.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), a petitioner must prove either 1) that the
vaccinee suffered a “Table Injury” – i.e., an injury falling within the Vaccine
Injury Table – corresponding to one of the vaccinations, or 2) that the vaccinee
suffered an injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A)
and 300aa-11(c)(1). Under the Act, a petitioner may not be given a Program award
based solely on the petitioner’s claims alone. Rather, the petition must be
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supported by either medical records or by the opinion of a competent physician.
§ 300aa-13(a)(1).
In this case, petitioner filed medical records and expert reports in support of
her claim, but nonetheless, wishes to have her claim dismissed and judgment
entered against her. Though petitioner filed this motion pursuant to 42 U.S.C.
§ 300aa—21(a) (regarding voluntary dismissal), the undersigned will construe this
as a motion filed pursuant to 42 U.S.C. § 300aa—21(b) (regarding involuntary
dismissal), given petitioner’s clear intent that a judgment issue in this case,
protecting her right to file a civil action in the future. See Pet’r’s Mot., filed Aug.
10, 2020, ¶ 4.
To conform to section 12(d)(3), a decision must “include findings of fact and
conclusions of law.” Here, although the parties were in the process of presenting
arguments, the evidence weighs against a finding that Ms. Walker suffered from
POTS or other injuries alleged. Without a showing that the vaccinee suffered the
injury that the vaccine allegedly caused, the remainder of the case becomes moot.
See Broekelschen v. Sec’y of Health and Human Servs., 618 F.3d 1339, 1346 (Fed.
Cir. 2010). Accordingly, the undersigned is not required to evaluate whether the
HPV vaccine can cause POTS.
Thus, the Motion for Decision is GRANTED and this case is
DISMISSED WITH PREJUDICE for insufficient proof. The Clerk shall
enter judgment accordingly. See Vaccine Rule 21(b).
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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