Miceli v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*************************
FRANCESCA MICELI, as *
Administratrix of the Estate of *
MARGUERITE MICELI, *
* No. 10-131V
Petitioner, * Special Master
* Christian J. Moran
*
v. *
* Filed: February 19, 2016
AND HUMAN SERVICES, *
* Ruling on the record
Respondent. *
*************************
F. John Caldwell, Jr., Maglio, Christopher & Toale, PA, Sarasota, FL, for
petitioner;
Debra Filteau-Begley, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION 1
Marguerite Miceli filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10 through 34 (2006), on March 1, 2010. In her
petition, Marguerite alleged that the human papillomavirus (“HPV”) vaccines she
received on July 10, 2007, and September 14, 2007, caused her to suffer systemic
lupus erythematosus (“SLE”), Raynaud’s disease, and fibromyalgia. Pet. at 1, 3, 5.
The information in the record, however, does not show entitlement to an award
under the Program.
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 ruling on its
website. 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 History2
The petition was filed on March 1, 2010,3 and over the next eight months,
Marguerite filed medical records (exhibits 1-10) and her affidavit (exhibit 11). The
Secretary filed the Rule 4 report on March 14, 2011.
On December 5, 2011, a hearing was held by videoconferencing.
Marguerite’s mother, sister, and Marguerite herself testified. Marguerite was
ordered to obtain additional information which was submitted by July 2012.
On September 10, 2012, Marguerite died. The autopsy listed her cause of
death as acute respiratory distress syndrome secondary to thrombotic
thrombocytopenic purpura in the setting of systemic lupus erythematous. Exhibit
39 at 3. Her death, as described in footnote 2, prompted a substitution for the
petitioner.
The undersigned found facts about Marguerite’s health in the year before her
HPV vaccinations. In response to a motion from respondent, the undersigned
issued revised findings of fact on September 13, 2015.
On September 29, 2015, a status conference was held to discuss the
petitioner’s progress in obtaining an expert and what the parties’ should have their
respective experts address in their reports. On December 16, 2015, a status
conference was held to further discuss petitioner’s progress toward locating an
expert. Petitioner’s counsel informed the undersigned that petitioner did not want
to continue with the case and would seek a ruling on the record. Petitioner filed a
status report on January 8, 2016, to request additional time to confer with counsel
to determine how to proceed.
On January 22, 2016, petitioner filed a motion for a decision on the record.
This document responds to that motion.
2
A more detailed procedural history can be found in the March 12, 2015, unpublished
ruling finding facts.
3
Originally, the petitioner was Marguerite Miceli. However, while the petition was
pending, Marguerite died. After Marguerite’s death, her sister, Francesca Miceli, became the
administrator of her estate and became the petitioner. See exhibit 37 and order, filed November
8, 2012.
Consistent with the parties’ practice, this ruling refers to Marguerite Miceli as
“Marguerite.” This differentiates her from her sister.
2
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), petitioner must prove either 1) that
Marguerite suffered a “Table Injury” – i.e., an injury falling within the Vaccine
Injury Table – corresponding to her vaccination, or 2) that she suffered an injury
that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-
11(c)(1). An examination of the record did not uncover any evidence that
Marguerite suffered a “Table Injury.” Thus, petitioner is necessarily pursuing a
causation-in-fact claim.
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, because the medical records do not support Marguerite’s claim, a
medical opinion must be offered in support. Petitioner was given the opportunity
to obtain an expert opinion, but no additional opinion was offered.
Accordingly, petitioner has not submitted persuasive evidence in support of
compensation. Petitioner is not entitled to compensation. The Clerk shall enter
judgment accordingly.
Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357-
6360.
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
3