Godek v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
CHESTER GODEK, *
* No. 19-106V
Petitioner, * Special Master Christian J. Moran
*
* Filed: April 15, 2021
v. *
* Entitlement; dismissal.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*********************
Isaiah Richard Kalinowski, Maglio Christopher and Toale, PA, Washington, DC,
for petitioner;
James Vincent Lopez, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Chester Godek alleged that a tetanus-diphtheria-acellular pertussis (“Tdap”)
vaccine he received on March 25, 2016, caused him to suffer polymyalgia
rheumatica (“PMR”). Petition, filed Jan. 22, 2019, ¶ 3, 17. On March 9, 2021,
Mr. Godek moved for a ruling on the issue of causation and entitlement to
compensation.
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website
(https://www.uscfc.uscourts.gov/aggregator/sources/7). Once posted, anyone can access this
decision via the internet. 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 be reflected in the document
posted on the website.
I. Procedural History
Mr. Godek filed a petition on January 22, 2019, and submitted supporting
medical records over the next few months. After Mr. Godek filed a statement of
completion on July 8, 2019, the Secretary proposed a due date for his Rule 4
report. Resp’t’s Status Rep., filed Jan. 7, 2020.
In his Rule 4 report, the Secretary opposed compensation arguing that
petitioner’s medical records did not establish a prima facie case. Resp’t’s Rep.,
filed Mar. 9, 2020, at 14-16. At a status conference to discuss the Rule 4 report,
Mr. Godek was ordered to file medical records requested by respondent and a
status report about whether an expert report would be filed. Order, issued Mar. 16,
2020. Mr. Godek stated his intent to file an expert report authored by Dr. Zizic by
June 26, 2020. Pet’s Status Rep., filed April 27, 2020. He filed the requested
medical records on May 27, 2020 and June 5, 2020.
On June 18, 2020, Mr. Godek filed medical literature in support of his claim.
Exhibits 21-61. The same day, Mr. Godek made his first motion for an
enlargement of time, requesting an additional 45 days to file his expert report.
Pet’s Motion, filed June 18, 2020. The undersigned granted the request and
advised that if Dr. Zizic does not cite an article, Mr. Godek should be prepared to
explain why the corresponding exhibit should not be stricken from the record.
Order, issued June 18, 2020.
Mr. Godek moved for a second 45-day enlargement of time on August 10,
2020. In the order granting Mr. Godek’s motion, the undersigned acknowledged
the pandemic could cause delays, but encouraged Mr. Godek to meet this deadline
and more fully explain reasons for delays moving forward. Order, issued August
11, 2020.
Mr. Godek moved for a third extension of time, stating Dr. Zizic’s
professional demands, including retiring from his clinic practice, occasioned the
delays. Pet’s Motion, filed Sept. 9, 2020. The motion was granted, and Mr. Godek
was again advised that the medical literature will be stricken if Dr. Zizic does not
cite the articles in his report. Order, issued Sept. 11, 2020.
In his fourth motion for extension of time, Mr. Godek stated that Dr. Zizic
“has begun the task of preparing his report, but requires additional time to
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complete it.” Pet’s Motion, filed Oct. 26, 2020. The undersigned again granted
Mr. Godek’s motion and encouraged him to meet the next deadline. Order, issued
Oct. 27, 2020.
Mr. Godek did not file a report from Dr. Zizic. Due to insufficient evidence
available to explain a reliable biological mechanism for causation, Dr. Zizic
declined to provide an expert report in support of Mr. Godek’s petition. See Pet’s
Motion, filed Dec. 10, 2020. In turn, Mr. Godek moved for an extended stay of
proceedings to allow the medical science in the relevant field to further develop
and requested a status conference to discuss his case. Id.
In a status conference on December 21, 2020, petitioner represented that he
was not aware of any research currently being conducted on the general causation
issue. Acknowledging that Dr. Zizic’s unwillingness to provide an expert report
suggests the facts of petitioner’s case are an impediment to a successful claim, the
undersigned nevertheless stayed proceedings until January 20, 2021.
On February 3, 2021, Mr. Godek filed an additional piece of medical
literature as exhibit 62. In a contemporaneous status report, Mr. Godek stated the
relatively new article may be applicable to this case, and he is waiting to hear from
Dr. Zizic about whether the article changes his opinion on this case. Mr. Godek
further stated that he is aware that if Dr. Zizic did not provide a supportive opinion,
he will face disposition. The following day, the undersigned ordered Mr. Godek to
file a status report or substantive pleadings by March 5, 2021.
On March 9, 2021, Mr. Godek moved for a ruling on causation and
entitlement, having only filed medical literature but no expert report in support of
his position. He advised that if entitlement is denied, he will elect to reject
judgment and preserve his right to file a civil action.
The Secretary filed a response. Referencing his Rule 4(c) report, he argues
that Mr. Godek has failed to demonstrate a Table injury and has not provided a
sufficient medical opinion or theory establishing a causal connection between the
Tdap vaccination and his alleged injuries. Resp’t’s Resp., file Mar. 15, 2021. The
Secretary further notes that Mr. Godek’s medical literature alone does not satisfy
the evidentiary burden under the Vaccine Act, in part because no expert testimony
has been offered to establish the “relevance, reliability, and persuasiveness of these
articles.” Id. at 4. This matter is now ready for adjudication
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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
supported by either medical records or by the opinion of a competent physician.
§ 300aa-13(a)(1).
In this case, Mr. Godek filed medical records in support of his claim without
an expert report, but nonetheless, wishes to have his case decided. To conclude the
proceedings on the petition and have judgment enter, a decision must be issued.
Vaccine Rules 10(c), 11(a).
To conform to section 12(d)(3), a decision must “include findings of fact
and conclusions of law.” Here, the evidence does not allow a finding that Mr.
Godek’s PMR was caused by the flu vaccine. Even if literature alone could carry
Mr. Godek’s burden to show a flu vaccine can cause PMR – a debatable
proposition – Mr. Godek has not presented persuasive evidence that a flu vaccine
caused his PMR. See Hibbard v. Sec'y of Health & Human Servs., 698 F.3d 1355,
1364 (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.
s/Christian J. Moran
Christian J. Moran
Special Master
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