Warren v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-919V
Filed: October 5, 2017
Not to be Published.
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KIONA WARREN, *
*
Petitioner, *
* Human papillomavirus (“HPV”) vaccine;
v. * Thrombotic thrombocytopenic purpura
* (“TTP”) 10-11 weeks later; petitioner moves
SECRETARY OF HEALTH * to dismiss; motion to dismiss granted
AND HUMAN SERVICES, *
*
Respondent. *
*
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F. John Caldwell, Jr., Sarasota, FL, for petitioner.
Debra A. Filteau Begley, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION 1
On November 21, 2013, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that human papillomavirus (“HPV”)
vaccine administered on September 17, 2010 caused her thrombotic thrombocytopenic purpura
(“TTP”) and systemic lupus erythematosus (“SLE”). Pet. at ¶¶ 1 and 3.
On September 25, 2015, petitioner filed an amended petition removing her claim of a
vaccine-caused SLE, and retaining her claim that HPV caused her TTP. Am. Pet. at ¶ 5.
On October 4, 2017, petitioner filed a Motion for Decision Dismissing Petition, stating
1
Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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, petitioner has 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 banned categories listed above, the special master shall redact such material from public access.
that she will be unable to prove she is entitled to compensation, and that to proceed further would
waste the resources of the court, respondent, and the Vaccine Program. Mot. at ¶¶ 1, 2.
Petitioner states she intends to elect to file a civil action once judgment on the dismissal decision
is entered. Id. at ¶ 5.
The undersigned GRANTS petitioner’s Motion for Decision Dismissing Petition, and
DISMISSES the petition.
Medical Records
On July 19, 2013, petitioner saw Dr. Archana Maini, a hematologist. Med. recs. Ex. 4, at
6. The history was that she received HPV vaccine in 2010 [September 17, 2010]. In December
2010, she did not feel well. Her platelet count was found to be low at 14,000. Her hemoglobin
was also low at 7. Id. This record puts onset at 10-11 weeks post-HPV vaccination.
DISCUSSION
To satisfy her 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 petitioner’s
affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
association is not sufficient to prove causation in fact. Id. at 1148.
Petitioner must show not only that but for her HPV vaccination, she would not have had
TTP, but also that HPV vaccine was a substantial factor in causing her TTP. Shyface v. Sec’y of
HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999).
Petitioner moves for a dismissal of her petition.
The undersigned GRANTS petitioner’s motion and DISMISSES this petition.
2
CONCLUSION
The petition is DISMISSED. In the absence of a motion for review filed pursuant to
RCFC Appendix B, the Clerk of Court is directed to enter judgment herewith. 2
IT IS SO ORDERED.
Dated: October 5, 2017 /s/ Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
3