Hennings v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
MATHEW HENNINGS, *
* No. 18-1336V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: April 13, 2020
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * dismissal; receipt of vaccination
*
Respondent. *
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Mark T. Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for petitioner;
Lara Englund, United States Dep’t of Justice, Washington, DC, for respondent.
DECISION DENYING COMPENSATION1
Mathew Hennings is seeking an award through the National Childhood
Vaccine Injury Compensation Program, codified at 42 U.S.C. § 300aa–10 through
34. The premise of his claim is that he received an influenza vaccination on or
about October 1, 2015. Am. Pet., filed Jan. 24, 2020, at preamble. However, for
the reasons explained below, the evidence does not support a finding that he
received this vaccination. Without this foundational point, he cannot receive
compensation.
1
Because this decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it 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). This means the decision will
be available to anyone with access to the internet (http://www.cofc.uscourts.gov/aggregator/
sources/7). In accordance with Vaccine Rule 18(b), the parties have 14 days to identify and
move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified
material fits within this definition, the undersigned will redact such material before posting the
decision.
Procedural History
Mr. Hennings alleged that he “received an influenza vaccination on or about
October 1, 2015, and who suffered shortly thereafter vaccine-induced
polyneuropathy.” Pet., filed Aug. 31, 2018, preamble. Mr. Hennings provided
more context for the vaccination, alleging that he received the vaccination “at his
place of employment, where it was being offered by a third party vendor.” Id. ¶ 2.
Mr. Hennings added that his attorney “is filing this case to preserve the statute of
limitations, during the record collection process and plans on filing an amended
complaint once all records have been received and reviewed.” Id. at ¶ 8.
Within approximately six weeks of filing the petition, Mr. Hennings sought
to use formal discovery methods to gain information from his employer, VFI
Corporate Finance. Pet’r’s Mot. to Issue Subpoena, filed Oct. 10, 2018. Mr.
Hennings was granted this authority. Order, issued Oct. 15, 2018.
Mr. Hennings filed the response of VFI Corporate Finance as exhibit 4. 2
VFI Corporate Finance’s website states that “VFI has financed billions in assets
worldwide. We specialize in meeting the financial needs of companies from the
Middle-Market to Fortune 500 companies.” See court exhibit 1001 (VFI
Corporate Finance, About VFI Corporate Finance, https://www.vfi.net/about-vfi/
(last visited Apr. 7, 2020)). A legal assistant from VFI Corporate Finance
informed Mr. Hennings’s attorney that “VFI has conducted a search of all records
in its possession, and does not have information or documentation regarding VFI
Corporate Finance sponsored employee vaccination events held from August 1,
2015, to December 31, 2015.” Exhibit 4 (letter dated Nov. 7, 2018). The legal
assistant also provided information about Intermountain Healthcare Pharmacy
Services, “a third-party provider who would have information regarding flu
vaccination events held from August 1, 2015 to December 31, 2015.” Id.
Approximately six months after receiving this response from VFI Corporate
Finance, Mr. Hennings filed a motion to authorize a subpoena to Intermountain
Healthcare. Pet’r’s Mot., filed May 22, 2019. This motion too was granted.
Order, issued May 23, 2019.
2
Mr. Hennings filed exhibit 4 on November 15, 2018, and December 21, 2018. But,
exhibit 4 is the same in both filings.
2
Mr. Hennings submitted the results of the subpoena to Intermountain
Healthcare on July 19, 2019. Exhibit 7. An unidentified person stated, “After an
extensive search we are unable to find the type of record requested at this facility.”
The letter continued “Intermountain Healthcare does not keep records from
vaccination clinics held at off site locations. The patient signs a consent form for
the vaccination, [is] given the vaccine, and then a paper with the vaccine’s
information for their own record.” Exhibit 7.
On the same day as Mr. Hennings filed the letter from Intermountain
Healthcare, he also filed his employment records from VFI Corporate Finance.
Exhibit 8. These records, which are 73 pages, do not refer to any immunization
program. Supplemental information about Mr. Hennings’s work schedule also
provided no information. Exhibit 9.
Mr. Hennings also explored another source that could potentially document
his receipt of vaccination. Utah, the state in which Mr. Hennings lives, maintains a
“secure, confidential immunization information system that helps healthcare
providers . . . and Utah residents maintain consolidated immunization histories.”
Court exhibit 1002 (Utah Department of Health, Utah Statewide Immunization
Information System (USIIS), https://immunize.utah.gov/usiis/ (last visited Apr. 7,
2020)). Mr. Hennings’s query prompted a response that no immunization record
could be found. Exhibit 10.
Mr. Hennings attested that he received a flu vaccination while employed as a
manager at VFI Corporate Finance. This flu vaccination happened in the fall 2015,
and he began having numbness and tingling in his left foot a few weeks after the
vaccination. Exhibit 12 (affidavit). The same day that Mr. Hennings filed this
affidavit, January 24, 2020, he also filed his amended petition. With respect to
factual allegations, the amended petition is not meaningfully different from the
original petition, although the amended petition added Mr. Hennings’s initial
treatment details and his eventual diagnosis of polyneuropathy.
Mr. Hennings then filed a motion requesting a finding that he was
vaccinated in the fall 2015. Pet’r’s Status Rep., filed Jan. 24, 2020. 3 Mr. Hennings
relies upon his affidavit.
3
Because Mr. Hennings is seeking relief, the proper CM/ECF docket entry is a motion.
When a motion is docketed, CM/ECF creates deadlines for filing responses and replies
automatically. See Vaccine Rule 20(b).
3
The Secretary opposed Mr. Hennings’s proposed finding of fact. The
Secretary relied upon the absence of any record of vaccination in material from
VFI Corporate Finance, Intermountain Healthcare, or the Utah state registry. The
Secretary also noted that the medical records, which began to be created
approximately six months after vaccination, do not mention the flu vaccination.
Resp’t’s Resp., filed Feb. 26, 2020.
Mr. Hennings maintained his position by developing various arguments in
his reply. Pet’r’s Reply, filed Mar. 19, 2020.4 With the filing of the reply brief,
the issue is ready for adjudication.
Standards for Adjudication
The Vaccine Act requires a petitioner to prove receipt of a vaccine by a
preponderance of the evidence. 42 U.S.C. §§ 300aa–11(c)(1), –13(a)(1)(A).
Under this standard, the special master, before finding in favor of the party with
the burden to prove a fact’s existence, must “believe that the existence of a fact is
more probable than its nonexistence.” Moberly v. Sec’y of Health & Human
Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations omitted).
In determining the persuasiveness of the evidence, the special master must
assess “the record as a whole” and may not find that a petitioner received a vaccine
“based on the claims of a petitioner alone, unsubstantiated by medical records or
by medical opinion.” 42 U.S.C. § 300aa–13(a)(1). Vaccine Rule 2 holds, in
accordance with 42 U.S.C. § 300aa–11(c), that a petition shall be accompanied by
“all available medical records supporting the allegations in the petition, including
physician and hospital records relating to: the vaccination itself.” Vaccine Rule
2(c)(2)(A)(i).
Although strictly contemporaneous documentation of vaccination from a
health care provider is the best evidence, its production is not an absolute
requirement. See Centmehaiey v. Sec’y of Health & Human Servs., 32 Fed. Cl.
612, 621 (1995) (“The lack of contemporaneous, documentary proof of a
vaccination . . . does not necessarily bar recovery.”). Vaccine Rule 2 states that
“[i]f the required medical records are not submitted, the petitioner must include an
affidavit detailing the efforts made to obtain such records and the reasons for their
unavailability.” Vaccine Rule 2(c)(2)(B)(i). Furthermore, if petitioner’s claim is
4
Mr. Hennings should not have waited until his reply brief to present these arguments.
See SmithKline Beecham, Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006).
4
“based in any part on the observations or testimony of any person, the petitioner
should include the substance of each person’s proposed testimony in a detailed
affidavit(s) supporting all elements of the allegations made in the petition.”
Vaccine Rule 2(c)(2)(B)(ii).
Special masters have found in favor of vaccine administration where direct
documentation of vaccination is unavailable. In such cases, preponderant evidence
has been found in other medical records and/or witness testimony. For example,
corroborative, though backward-looking, medical notations have been found to tip
the evidentiary scale in favor of vaccine receipt. See Lamberti v. Sec’y of Health
& Human Servs., No. 99-507V, 2007 WL 1772058, at *7 (Fed. Cl. Spec. Mstr.
May 31, 2007) (finding multiple medical record references to vaccine receipt to
constitute adequate evidence of administration); Groht v. Sec’y of Health &
Human Servs., No. 00-287V, 2006 WL 3342222, at *2 (Fed. Cl. Spec. Mstr. Oct.
30, 2006) (finding a treating physician’s note—“4/30/97—Hep B. inj. # 1 (not
given here) (pt. wanted this to be charted)”—to be sufficient proof of vaccination);
Wonish v. Sec’y of Health & Human Servs., No. 90-667V, 1991 WL 83959, at *4
(Cl. Ct. Spec. Mstr. May 6, 1991) (finding parental testimony “corroborated
strongly by medical records [referring] back to the [vaccination]” to be sufficient
to establish vaccine administration). On the other hand, the lack of support for
vaccination in records can contribute to a finding that a petitioner did not receive a
vaccination. See Keaton v. Sec’y of Health & Human Servs., No. 12-444V, 2014
WL 3696349 (Fed. Cl. Spec. Mstr. July 2, 2014).
Addressing the value of medical records in general, the Federal Circuit has
noted that such records “warrant consideration as trustworthy evidence.” Cucuras
v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). The
Circuit added that “[t]he records contain information supplied to or by health
professionals to facilitate diagnosis and treatment of medical conditions. With
proper treatment hanging in the balance, accuracy has an extra premium.” Id.
To request that a special master determine whether a vaccination has been
administered, both parties can move for a ruling on the record on this issue. Smith
v. Sec'y of Health & Human Servs., No. 14-982V, 2017 WL 2927419, at *1 (Fed.
Cl. Spec. Mstr. June 2, 2017) (motion by respondent); Goins v. Sec'y of Health &
Human Servs., No. 15-848V, 2017 WL 1231687, at *2 (Fed. Cl. Spec. Mstr. Mar.
10, 2017) (motion by petitioner).
5
Discussion
Mr. Hennings has not presented persuasive evidence that he received a flu
vaccine in the fall 2015. No record of vaccination appears in three different
potential sources of information–Mr. Hennings’s employer (who hosted the
vaccination clinic), Intermountain Healthcare (who allegedly administered the
vaccine), and the Utah vaccine registry (who could register the vaccination).
To some degree, Mr. Hennings has an explanation for the absence of
records. VFI Corporate Finance did not deny that it sponsored a service to provide
vaccinations to its employees. VFI Corporate Finance simply stated that it does
not possess any records from an event in the fall 2015. To Mr. Hennings, VFI
Corporate Finance’s failure to contest the suggestion that it held such an event
supports a finding that it held an event in fall 2015. Similarly, according to Mr.
Hennings, the absence of records from Intermountain Healthcare is not meaningful
because Intermountain Healthcare stated that it does not maintain records for
vaccination clinics held at off-site locations. Finally, Mr. Hennings asserts,
without citing any legal authority, that administrators of vaccinations are legally
required to report vaccinations to the Utah registry only when the vaccinee is a
child. These points are legitimate.
However, other than his affidavit, Mr. Hennings does not point to any
evidence discussing his vaccination. As the Secretary pointed out, Mr. Hennings
saw his primary care doctor on April 15, 2016, which is approximately six months
after the alleged vaccination. This record does not mention a vaccination. Exhibit
1 at 10-12; see also Resp’t’s Resp. at 2.
In his reply, Mr. Hennings does not cite any medical records that discuss a
vaccination. The undersigned has not located any medical records describing a
vaccination.
The absence of any medical record means that Mr. Hennings is relying upon
his recollection alone. Given the circumstances, this evidence is not persuasive.
See 42 U.S.C. § 300aa–13(a).5
5
Whether persuasive evidence establishes that Mr. Hennings received a vaccination is, in
some ways, distinct from the question of whether the vaccination caused or significantly
aggravated a polyneuropathy. On the other hand, the date of vaccination is a factor in
considering whether the interval between the vaccination and the onset of the disease is
(. . . continued)
6
Conclusion
Mr. Hennings has not established that he received a flu vaccination.
Without this foundation, he cannot receive compensation. Consequently, the
Clerk’s Office is directed to enter judgment in accord with this decision unless a
motion for review is filed.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
medically appropriate. See Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278
(Fed. Cir. 2005).
Here, even if it were assumed that Mr. Hennings received the flu vaccination on October
1, 2015, the date he proposes in his amended petition, his ability to establish causation appears
questionable. Mr. Hennings recognizes that on February 9, 2018, he told a doctor that numbness
in his feet began two years ago. Pet’r’s Reply at 2, citing exhibit 1 at 1. If, again for sake of
argument, it is assumed that Mr. Hennings’s neuropathy started on February 9, 2016, then the
interval between (an assumed) vaccination and (an assumed) onset is 131 days (more than 18
weeks). Eighteen weeks is far beyond what special masters have accepted as a medically
appropriate interval. Moreover, Mr. Hennings reported at his April 15, 2016 appointment with
Dr. Witbeck that the pain, numbness, and weakness in his feet had begun “1 year ago.” Exhibit 1
at 10. Thus, if Mr. Hennings’s foot symptoms began in approximately April 2015, then these
symptoms pre-dated the vaccination.
7