Robbins v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
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RAY A. ROBBINS, *
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* No. 16-1385V
* Special Master Christian J. Moran
Petitioner, *
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v. * Filed: June 15, 2021
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SECRETARY OF HEALTH * Entitlement; dismissal.
AND HUMAN SERVICES, *
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Respondent. *
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Otwell S. Rankin, D. Dahlenburg Bonar P.S.C., Covington, KY, for petitioner;
Colleen C. Hartley, United States Dep’t of Justice, Washington, D.C., for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Ray Robbins alleged that the influenza (“flu”) vaccine he received on
October 25, 2013, caused him to chronic inflammatory demyelinating
polyneuropathy (“CIDP”). Pet., filed Oct. 24, 2016, at Preamble. On May 26,
2021, Mr. Robbins moved for a decision dismissing his petition.
I. Procedural History
Ray Robbins (“petitioner”) filed a petition on October 24, 2016. Along with
his petition, he filed relevant medical records, which were complete on October 4,
2017. See Resp’t’s Status Rep., filed Oct. 4, 2017. The Secretary then filed his
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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.
Rule 4(c) report on December 4, 2017. In the report, the Secretary challenged
diagnosis and causation. Resp’t’s Rep. at 17-19.
The parties then filed expert reports. Petitioner filed an expert report and
supplemental expert report from Dr. Shoenfeld on August 15, 2018, and August
26, 2019, respectively. Petitioner filed an expert report and supplemental expert
report from Dr. Steinman on August 16, 2018, and August 26, 2019, respectively.
Respondent filed responsive expert reports from Dr. Chaudhry and Dr. Forsthuber
on March 8, 2019. Respondent filed an additional report from Dr. Chaudhry on
December 15, 2020. On January 19, 2021, petitioner filed a status report stating
that he did not wish to submit an additional expert report. Thus, the expert report
stage concluded.
On February 3, 2021, the undersigned issued and order for submissions in
advance of potential adjudication, along with a tentative finding regarding
entitlement. In this tentative finding, the undersigned found that, based on the
evidence submitted at that time, petitioner had not met his burden to establish the
diagnostic criteria for CIDP, a theory of causation, or timing. Tentative Finding
Denying Entitlement, filed Feb. 3, 2021, at 2-4. This was due to greater
persuasiveness with respect to diagnosis presented by Dr. Chaudhry, a lack of
persuasiveness with respect to a molecular mimicry theory of causation, and
discrepancies regarding the first report of weakness indicating onset.
A status conference was then held on February 23, 2021, in which
petitioner’s counsel stated that he wished to consult with petitioner and petitioner’s
experts before deciding whether to move to dismiss the case or proceed to the
briefing stage. On May 26, 2021, petitioner filed a motion for a decision
dismissing his petition. Respondent did not file a response to this motion. Thus,
this motion is 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
his claim, but wishes to have his claim dismissed and judgment entered against
him. 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 his right
to file a civil action in the future. See Pet’r’s Mot., filed May 26, 2021, ¶¶ 3, 5.
To conform to section 12(d)(3), a decision must “include findings of fact and
conclusions of law.” Here, as addressed in the tentative finding denying
entitlement issued on February 3, 2021, based on the medical records and expert
reports submitted, petitioner has not met his burden to prove a diagnosis of CIDP,
theory, or timing. As detailed in this tentative finding, respondent’s experts
provided significantly more persuasive opinions regarding these aspects of the
case. Dr. Chaudhry provided a detailed explanation of why petitioner did not
suffer from CIDP, making persuasive points to which Dr. Steinman did not
respond. When a petitioner fails to establish diagnosis, there is no need for an
analysis pursuant to Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274,
1278 (Fed. Cir. 2005). Lombardi v. Sec’y of Health & Human Servs., 656 F.3d
1343, 1353 (Fed. Cir. 2011). However, even if petitioner were to establish
diagnosis, he has failed to establish Althen prongs 1 or 3. As stated in the tentative
finding, Dr. Steinman’s reliance on Blast searches does not persuasively advance
the theory of molecular mimicry, and Dr. Forsthuber further pointed out holes in
his opinion with regard to prong 1. Additionally, the relevant onset date, or date
petitioner first reported weakness, is flimsy and complicated by pre-vaccination
reports of weakness. Thus, petitioner has not persuasively shown why November
11, 2013 is the onset date and is therefore unlikely to establish prong 3. If
petitioner is unlikely to establish prong 1 or prong 3, it follows that petitioner
cannot establish prong 2. See Caves v. Sec’y of Health & Human Servs., 100 Fed.
Cl. 199, 145 (2011), aff’d without op., 463 Fed. App’x 932 (Fed. Cir. 2012).
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.
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s/Christian J. Moran
Christian J. Moran
Special Master
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