The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
*
PATRICIA LOPEZ, *
* No. 20-223V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: November 19, 2020
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Dismissal; show cause; equitable
* tolling; discriminatory treatment;
* statute of limitations.
Respondent. *
*********************
Christopher Lee Phillippe, Christopher Lee Phillippe, PC, Brownsville, TX, for
petitioner;
Emilie Williams, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION DISMISSING CASE 1
Ms. Lopez alleges that she received an influenza vaccination on September
15, 2015. Pet., filed Feb. 27, 2020, ¶ 4. Ms. Lopez further alleges that she
developed shoulder problems within 48 hours of vaccination. Id. ¶¶ 6-7, 14. Ms.
Lopez claims compensation for her shoulder injury related to vaccine
administration (“SIRVA”). Id. ¶ 11.
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. This posting will make the decision available to anyone with 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 appear in the document posted on the website.
Ms. Lopez filed the present action beyond the time permitted by the statute
of limitations. Although given an opportunity to explain why her case should
continue despite its untimeliness, Ms. Lopez has not presented any persuasive
argument. Thus, the case is dismissed.
Background
Information relevant to Ms. Lopez’s pending case falls into three categories:
(1) the events that happened to her, (2) the procedural history in the first case, and
(3) the procedural history in the pending case.
Events for Ms. Lopez
Ms. Lopez was born on January 4, 1965. Pet. ¶ 2. There is no evidence in
the record regarding her pre-vaccination health; however, petitioner states that she
had no health problems involving shoulder pain or anxiety prior to her vaccination.
Id. ¶ 5. Ms. Lopez received her flu vaccination on September 15, 2015. Id. ¶ 4;
exhibit 1 at 2.
Ms. Lopez alleges that she began experiencing “shoulder pain, discomfort,
headaches, pain, and fever due to the vaccination and SIRVA,” after receiving the
vaccination. Pet. ¶ 7. However, there is no evidence in the medical records of this
immediate reaction. In her petition, Ms. Lopez points to exhibit 1 at page 33 to
substantiate this claim, but this portion of the record covers an appointment on
September 23, 2015, in which Ms. Lopez complained of cough, congestion,
headache, and fever. Exhibit 1 at 33. She did not complain of shoulder injury and
no shoulder injury was mentioned at this appointment. Id.
Approximately seven months after receiving her flu vaccination, Ms. Lopez
was hospitalized on April 24, 2016. Exhibit 2 at 4. There, Ms. Lopez complain of
chest pain and tightness, and shortness of breath. Id. The attending physician did
not note any problems involving her shoulder or reference the vaccination. Ms.
Lopez characterizes her chest pain and tightness as a panic attack caused by the
alleged shoulder injury. Pet. ¶ 8.
Ms. Lopez was again hospitalized on May 1, 2016. She presented with
“severe headaches and an acute presentation of right-sided leg flaccid paralysis and
dysarthria.” Exhibit 3 at 48. She also complained of issues with swallowing. Id.
The attending physician noted a one-day onset of the right-sided paralysis. Id. at 4.
Decreased motor function in her right arm and right leg were also noted. Id. at 10.
Ms. Lopez claims that, given that the vaccination was administered in her right
arm, this numbness was a result of vaccine-caused shoulder injury. Pet. ¶ 9. Ms.
2
Lopez has not filed any medical records from after this second hospital visit in
May 2016.
Procedural History in 17-365V
Ms. Lopez filed a petition, docketed as 17-384V, on March 20, 2017. Her
attorney was Omar Rosales. Around this time, Mr. Rosales filed petitions for
approximately 28 other people. These cases, including Ms. Lopez’s case, were
assigned to Special Master Hastings.
Ms. Lopez’s petition was three pages in length and contained 12 paragraphs.
The petition alleged that the September 15, 2015 flu vaccination caused her to
suffer dizziness, anxiety disorder, and depression, which Dr. Francisca Torres
diagnosed on June 6, 2016. Pet. ¶¶ 5, 7. Petitioner did not allege that she
sustained a shoulder injury. Although the petition referenced medical records, Ms.
Lopez did not file any exhibits with the petition. Thus, at this time, Ms. Lopez had
not filed any medical records corroborating her claims.
On March 30, 2017, Special Master Hastings conducted a status conference,
which was digitally recorded. 2 At the onset, Special Master Hastings informed
Attorney Rosales that he expected to retire at the end of July. First Tr. 7; see also
First Tr. 57. Special Master Hastings discussed that for a case in which the
petitioner was alleging that a flu vaccine caused a condition not listed on the
Vaccine Injury Table, the petitioner would need to get an expert report and Mr.
Rosales agreed that he could submit an expert report. First Tr. 17-22. In the
absence of an expert report, Special Master Hastings stated that he would be
inclined to find that all of Mr. Rosales’s cases lacked a reasonable basis. First Tr.
28. Attorney Rosales stated that he would find experts to supplement the
petitioner’s position on causation. First Tr. 30. Special Master Hastings again
counseled that the petitioners had to have some proof of causation. First Tr. 44-
50.3
2
The Secretary filed the transcript from this status conference as part of the appendix to a
motion to dismiss, pages 25-50, in Machuca. Each page of the appendix reproduces four pages
of the miniscript transcript. For example, transcript pages 5-8 are appendix page 26. This
decision cites to specific pages of the transcript as “First Tr.”
3
It appears that in all of the 28 cases assigned to Special Master Hastings, the petitions
sought compensation for injuries not listed in the Vaccine Table. Thus, the petitioners would be
required to establish causation-in-fact.
3
The order from this status conference was consistent with the oral
statements during the status conference. The order explained that the cases
Attorney Rosales had filed “at first glance, do not include allegations that would be
sufficient to establish entitlement to a Program award or even to establish a
‘reasonable basis’ for the case sufficient to justify an award of attorneys’ fees or
costs for filing the cases.” Order, issued March 30, 2017. Accordingly, Special
Master Hastings stayed the case for 180 days to allow counsel to investigate the
vaccinee’s medical history and to determine whether evidence could support an
allegation that a vaccine harmed petitioner.
Special Master Hastings subsequently modified the March 30, 2017 order.
Instead of requiring Attorney Rosales to investigate 28 cases in 180 days, Special
Master Hastings directed Attorney Rosales to investigate 8 cases in 60 days. Ms.
Lopez’s case was one of those eight cases that Special Master Hastings directed
Attorney Rosales to advance. Accordingly, Mr. Rosales was directed to determine
whether he wanted the case to proceed by June 26, 2017. In the cases that were
proceeding, the petitioner was ordered to file an amended petition and all medical
records. Order, issued April 26, 2017.
For two of eight cases Special Master Hastings had advanced in the April
26, 2017 order, Special Master Hastings conducted another status conference on
June 21, 2017.4 In those cases, before the status conference, Mr. Rosales amended
the petition and included an allegation of SIRVA.5 The topics discussed during the
status conference implicate and foreshadow some of the issues raised in the current
case. Thus, extensive quotations follow. Special Master Hastings questioned the
basis for a SIRVA claim:
But there was absolutely no evidence in either record that
the Petitioner ever suffered from SIRVA. And SIRVA is
a pretty distinctive thing . . .
I find it really highly strange that SIRVA wasn’t alleged
in the original petition, either one, and then was just
alleged in the -- in the amended petition in each of those
cases. And then when I looked at the records, there was
4
The transcript for the June 21, 2017 status conference is cited by transcript page as
“Second Tr.”
5
Effective March 21, 2017, the Secretary amended the Vaccine Injury Table to associate
SIRVA with vaccines. 82 Fed. Reg. 113201 (Feb. 22, 2017).
4
just no -- still no -- no record to indicate that they ever
had any signs of SIRVA or that any of their other
symptoms were ever judged to be vaccine-caused by a
physician.
Second Tr. 4. Special Master Hastings elaborated that SIRVA cases are based
upon medical records:
You [Mr. Rosales] alleged SIRVA but there’s no
evidence of it. . . . [Shoulder injuries] are really easy to
see in the medical records themselves. The person comes
back a day later, two days later, and their shoulder is all
swollen up and they can’t move it. That’s very – those
are almost very clear from the medical records. That
doesn’t seem to be the case in either [of the two cases
under discussion] unless I missed some medical records.
Second Tr. 12.
Partially in response, Mr. Rosales commented that Special Master Hastings
was not evaluating the cases fairly. He stated:
[I]t feels like you’re placing my clients, you know, under
a different microscope. And I’m just asking that my
clients be treated fairly, judge. Just because they’re poor,
just because they’re indigent and Hispanic doesn’t mean
they should be treated differently, Your Honor.
Second Tr. 16.
Special Master Hastings responded, outlining what petitioners need to
establish.
Well, I’m sorry I hurt your feelings, and I can guarantee
you that – that there has been no discrimination. It has
nothing to do with them being Hispanic. There’s no –
there’s no discrimination. I certainly reject that – that
suggestion, too.
But, you’re going to have to – you need – you need some
proof that a vaccine caused an injury . . . and the injury
lasted six months or longer.
5
Second Tr. 16. In direct response, Mr. Rosales stated:
[W]e will get the expert reports for those cases you
identified, Your Honor, and I’ve assembled all the
medical records, so it paints a much better picture. We’ll
review those things, Your Honor, absolutely.
Second Tr. 16.
Special Master Hastings accepted Mr. Rosales’s effort to review the cases.
Special Master Hastings stated:
So I encourage you to take – to take a look at your 28
cases and – and punt on the ones that don’t have – that
you can’t find any real connection. And if there’s any
that you can find a real connection, then concentrate on
litigating those.
Second Tr. 18.
Within a week of the June 21, 2017 status conference, Mr. Rosales filed a
status report in Ms. Lopez’s case, announcing her intention to file medical records,
to amend the petition to allege SIRVA, and possibly to obtain an expert. Given
Ms. Pedraza’s later argument regarding equitable tolling, her representations
regarding an expert are important to document. She stated: “After further review,
if the Court determines that an Expert report is necessary to substantiate and
augment the claim, Petitioner’s counsel will hire an expert and provide the Court
with the expert’s opinion within 30 days of the Court’s order.” Pet’r’s Status Rep.,
filed June 26, 2017, ¶ 5.
Special Master Hastings found that the June 26, 2017 status report, which
announced an intention to file documents, did not comply with the April 26, 2017
order, which required the filing of documents. However, Special Master Hastings
allowed petitioner until July 10, 2017, to file the required documents.
On July 10, 2017, Ms. Lopez filed a set of medical records (exhibits 1-3).
CM/ECF 11. On that same day, Ms. Lopez filed an amended petition. The
amended petition states that Ms. Lopez “developed SIRVA” and, due to the
vaccination and SIRVA, she “experienced severe shoulder pain, discomfort,
headaches, pain, and fever.” Id. ¶¶ 6-7.
6
Special Master Hastings directed Ms. Lopez to obtain a report from a
reputable and qualified medical doctor opining that she “suffered a specific
vaccine-caused injury, and explaining such opinion in detail.” Order, issued July
11, 2017. This order set the deadline as August 11, 2017. The order continued
that if counsel did not file such an expert report, “the case will be dismissed for
failure to prove a vaccine-caused injury.” Id.
The recounting of the procedural history of case 17-365V must pause.
Information from the pending case (docket 20-223V) shows that Ms. Lopez
obtained a report from Mark Levin, a doctor board-certified in internal medicine
and oncology. Dr. Levin’s report is dated July 14, 2017.
Without filing Dr. Levin’s report in case 17-365V, Attorney Rosales
submitted a one-sentence document on August 14, 2017. This document states,
“Petitioner files this notice of voluntary dismissal in accordance with Rule
21(a)(1)(A).”6 Pet’r’s Notice.
In accord with this notice, on August 14, 2017, Special Master Hastings
issued an order concluding proceedings in case number 17-365V. In accordance
with Rule 21(a)(1)(A), Special Master Hastings directed the Clerk not to enter
Judgment. Ms. Lopez did not seek attorneys’ fees or costs. Although not noted in
the docket, Special Master Hastings retired from the Office of Special Masters in
September 2017.
Procedural History in 20-223V
Represented by Attorney Christopher Phillippe, Ms. Lopez filed the pending
case on February 27, 2020. With her petition, Ms. Lopez filed 6 exhibits. Exhibits
2-3 appear to match exhibits 2-3 filed in the previous case. Exhibit 1 is Ms.
Lopez’s vaccination records. Exhibit 4 is labeled as Ms. Lopez’s affidavit;
however, it appears that a medical record from the Mr. Phillippe’s Villafranca case
(20-224V) was erroneously filed in its place. Exhibit 5 is the July 14, 2017 report
from Dr. Levin. Exhibit 6 is Dr. Levin’s CV.
The February 27, 2020 petition begins with a recitation of events in Ms.
Lopez’s life and the recitation in paragraphs 1-16 is similar to (but not identical to)
the recitation of events in the July 10, 2017 amended petition from the previous
6
For Voluntary Dismissals, Vaccine Rule 21(a)(1) provides: “Petitioner may dismiss the
petition without order of the special master of the court by filing:
(A) a notice of dismissal at any time before service of respondent’s report.”
7
case. The February 27, 2020 petition then adds a request for equitable tolling on
the basis that Special Master Hastings had previously required an expert report for
a SIRVA claim. See Pet. ¶¶ 17-20.
The undersigned discussed how to resolve the equitable tolling issue in a
status conference held on March 3, 2020. The undersigned stayed proceedings in
this case to allow the parties to make arguments in a similar case, Machuca v.
Sec’y of Health & Human Servs., No. 20-18V. Order, issued March 3, 2020.
After the parties submitted arguments, the undersigned dismissed Machuca
in a decision, issued July 17, 2020. Machuca v. Sec’y of Health & Human Servs.,
No. 20-18V, 2020 WL 4670877 (Fed. Cl. Spec. Mstr. July 17, 2020). The critical
issue in Machuca was whether the petitioner could take advantage of the doctrine
of equitable tolling to proceed on an action that the statute of limitations would
otherwise bar. The undersigned rejected the petitioner’s reliance on equitable
tolling because she failed to establish diligence nor extraordinary circumstances.
Petitioner could not establish diligence because she possessed Dr. Levin’s report
for months before she filed it. Petitioner could not establish extraordinary
circumstances for multiple reasons including (1) the requirement to file an expert
report was not burdensome because petitioner had a report from Dr. Levin, (2)
given the factual circumstances, an expert report was statutorily required, (3)
petitioner’s attorney took no steps to oppose Special Master Hastings’s order for
petitioner to file an expert report, and (4) petitioner did not present any basis for
concluding that Special Master Hastings discriminated against her on the basis of
her national origin. Ms. Machuca, whom Attorney Rosales represented, did not
file a motion for review.
In the present case, the undersigned issued an order for Ms. Lopez to show
cause as to why her case should not be dismissed after Machuca. Ms. Lopez filed
a response to the order to show cause on August 24, 2020.
Analysis
Here, Ms. Lopez’s response to the order to show cause does not assert any
argument regarding the statute of limitations or equitable tolling. Instead, Ms.
Lopez presents a procedural argument, maintaining that the Secretary should first
file a motion to dismiss and/or a report pursuant to Vaccine Rule 4. Ms. Lopez
adds that a requirement that she respond to an order to show cause reflects
discriminatory treatment of her based upon her national origin.
8
Ms. Lopez’s arguments are unpersuasive for several reasons. Ms. Lopez has
cited no authority that suggests that enforcement of statutes of limitations can
amount to unconstitutional discrimination. Further, she does not argue that she
was not aware of the basis for potential dismissal through her attorney’s
participation in Machuca. Ms. Lopez also did not present any individualized
argument based upon the evidence of her case that would distinguish her case from
Machuca.
Conclusion
Ms. Lopez filed the petition outside of the time permitted by the statute of
limitations. She also has not shown that equitable tolling is appropriate based upon
the evidence. The Clerk’s Office is instructed to issue judgment in accord with this
decision unless a timely motion for review is filed.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
9