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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
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TRAVIS PAVLICEK, as parent and *
natural guardian of C.P., a minor, *
*
* No. 19-1573V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: May 28, 2021
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement; dismissal.
*
Respondent. *
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Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner;
Emilie Williams, United States Dep’t of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Travis Pavlicek alleged, on behalf of his minor son C.P., that the Diphtheria,
tetanus, and acellular pertussis (“DTap”), inactivated poliovirus (“IPV”), and
measles, mumps, and rubella (“MMR”) vaccines he received on May 8, 2018,
caused him to suffer narcolepsy. Pet., filed Oct. 9, 2019, at 1. On May 13, 2021,
Mr. Pavlicek moved for a decision dismissing his petition.
I. Procedural History
Travis Pavlicek (“petitioner”) filed a petition on October 9, 2019, on behalf
of his minor son C.P. Along with his petitioner, he filed relevant medical records,
which were complete on October 10, 2019. The Secretary then filed his Rule 4(c)
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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.
report on March 2, 2020. In the report, the Secretary challenged causation.
Resp’t’s Rep. at 8-10.
The parties then filed expert reports. Petitioner filed an expert report and
supplemental expert report from Dr. Nahm on April 16, 2020, and June 1, 2020,
respectively. Respondent then filed responsive expert reports from Dr. Dye and
Dr. MacGinnitie on September 23, 2020. On January 27, 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 19, 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 “ha[d] not met his burden of
establishing molecular mimicry as a persuasive theory to explain how vaccines can
cause narcolepsy.” Tentative Finding Denying Entitlement, filed Feb. 19, 2021, at
2. This was due to the relative qualifications of the experts, as well as a lack of
sufficient evidence regarding appropriate timing to satisfy Althen prong 3.
A status conference was then held on March 11, 2021, in which petitioner’s
counsel stated that she wished to consult with Dr. Steinman before deciding
whether to move to dismiss the case or proceed to the briefing stage. On May 13,
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
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
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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 13, 2021, ¶¶ 11, 13.
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 19, 2021, based on the medical records and expert
reports submitted, petitioner has not met his burden to prove that the vaccines C.P.
received caused his narcolepsy. As detailed in this tentative finding, respondent’s
experts have greatly superior qualifications in the relevant areas, when compared
to petitioner’s expert. Dr. Nahm’s theory regarding molecular mimicry was not
specific enough to the allegedly causal vaccine(s) or the body tissue attacked in
narcolepsy, to prove persuasive enough to meet petitioner’s burden for Althen
prong 1. Petitioner also failed to present sufficiently persuasive evidence to
establish appropriate timing that would satisfy Althen prong 3. Dr. Dye, who has
stronger qualifications in the field of childhood sleep disorders than Dr. Nahm,
opined that C.P. suffered from narcolepsy before vaccination. Additionally, even
putting this aside, the onset time frame that Dr. Nahm presents would be unlikely
to satisfy petitioner’s burden. 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.
s/Christian J. Moran
Christian J. Moran
Special Master
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