Opinion

Nathan v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Sep 16, 2021
Status
Unpublished
On the bench
Thomas L. Gowen
Cited by
0 cases
Authority
More cited than 18.7%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: August 12, 2021

* * * * * * * * * * * * * Unpublished

ADMIRE NATHAN, *

* No. 19-74V

Petitioner, *

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Dismissal Decision; Failure to

AND HUMAN SERVICES, * Prosecute; Insufficient Proof.

*

Respondent. *

* * * * * * * * * * * * *

Admire Nathan, Davenport, FL, pro se.

Mary E. Holmes, U.S. Department of Justice, Washington, D.C., for respondent.

DIMISSAL DECISION1

On January 15, 2019, Admire Nathan (“petitioner”)2 filed a petition for compensation in

the National Vaccine Injury Compensation Program.3 Petitioner alleged that as a result of

receiving the human papillomavirus vaccination on January 13, 2016, she suffered seizure-like

behavior, migraines and other issues. Petition (ECF No. 1); Petitioner’s Exhibit (“Pet. Ex.”) 26.

Petitioner had an attorney enter their appearance on July 16, 2019 (ECF No. 17). Petitioner filed

additional medical records on November 26, 2019, February 6, 2020, April 3, 2020 and on

October 7, 2020. Petitioner’s (“Pet.”) Exhibits (“Exs.”) 1-24. Petitioner filed a statement of

completion on October 7, 2020. ECF No. 38. Petitioner then filed additional medical records on

December 4, 2020. Pet. Exs. 25-27 (ECF no. 43).

1

Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a

reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of

Federal Claims. The Court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion

is posted on the Court’s website, each party has 14 days to file a motion requesting redaction “of any information

furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or

confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly

unwarranted invasion of privacy.” Vaccine Rule 18(b). An objecting party must provide the Court with a proposed

redacted version of the opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will

be posted on the Court’s website without any changes. Id.

2

Initially, the petition was filed on her behalf, but the case caption was corrected on October 8, 2020 (Order

Granting Petitioner’s Motion to Amend Case Caption) (ECF No. 41).

3

The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine

Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended 42 U.S.C. §§ 300aa-10 to 34 (2012)

(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of

the Act.

On October 8, 2020, after several extensions of time to file an amended petition,

petitioner was ordered to file either an amended petition or a status report indicating that an

amended petition will not be filed. Order (Non-PDF) (issued Oct. 8, 2020). The undersigned

granted petitioner another extension of time to file an amended petition on December 4, 2020,

giving petitioner until February 4, 2021 to file an amended petition. Order (Non-PDF) (issued

on Dec. 4, 2020). On February 4, 2020, petitioner filed a motion for an extension of time to file

an amended petition, requesting ninety additional days to file an amended petition, stating that

counsel had retained co-counsel to assist with litigating the claim on behalf of petitioner. Pet.

Motion (“Mot.”) (ECF No. 45). The undersigned granted petitioner’s motion on February 5,

2021 but ordered petitioner to file an amended petition by March 22, 2021, and if the deadline

was missed, a status conference was to be scheduled. Order (ECF No. 47).

On March 22, 2021, petitioner filed another extension of time to file an amended petition.

Pet. Mot. (ECF No. 48). The undersigned held a status conference on March 29, 2021. Status

Conference Order (ECF No. 49). During the status conference, I explained that the medical

records filed by petitioner “reflect a consensus that petitioner’s seizure-like symptoms (also

referred to as psychogenic non-epileptic seizures) are functional rather than neurological or

immune [mediated] in nature.” Scheduling Order (ECF No. 50). I explained to counsel that

functional injuries in the Vaccine Program are unusual. Id. at 2. Petitioner’s counsel explained

that he had been consulting with an attorney experienced in the Vaccine Program and would

work with co-counsel to determine how to proceed. Id. Petitioner was ordered to file an

amended petition to clarify the nature of petitioner’s injury or a status report proposing further

proceedings. Id. In the alternative, petitioner could file a motion for a decision dismissing the

petition. Id.

On April 27, 2021, petitioner’s attorney filed a motion to withdraw. Pet. Mot. to

Withdraw (ECF No. 51). The undersigned held a digitally recorded status conference on May

13, 2021. Order Granting Pet. Mot and Order to Show Cause (ECF No. 53). In addition to

counsel for petitioner and respondent, petitioner, and her mother Karena Harrison, participated in

this status conference. Id. at 1. During the status conference, I summarized the petitioner’s

medical history and petition. I also explained to petitioner that her current counsel had requested

to withdraw as counsel, but he did obtain relevant medical records. I also explained that

petitioner’s counsel was seeking to withdraw, which I would grant, and that in order to proceed,

petitioner would need a qualified medical expert’s opinion that addresses how the HPV vaccine

can cause the symptoms that petitioner had experienced. 42 U.S.C. § 300aa-13(a)(1)(A); Althen

v. Sec’y of Health & Human Servs., 418 F. 3d 1274, 1278 (Fed. Cir. 2005). I also explained that

petitioner’s symptoms have not been clearly diagnosed or categorized as being part of a

condition that is autoimmune in nature, making it unclear how her symptoms were caused by the

HPV vaccine. Id. at 2. Petitioner requested additional time to find a medical professional who

could provide to review her medical records and write a report supporting vaccine causation.

Further, petitioner requested the opportunity to contact other attorneys to secure representation of

her petition. Id. I ordered petitioner to complete and return the E-Notification Consent form and

then file a status report within sixty days providing an update on her efforts to retain an attorney

as well as retaining an expert to support her claim. Id.

2

On July 30, 2021, after petitioner missed her deadline to file a status report, the

undersigned issued a second Show Cause Order, again requiring petitioner to file a status report

by August 9, 2021 demonstrating efforts to retain an attorney or a medical expert to support her

claim. Order to Show Cause (ECF No. 55). The undersigned informed petitioner that failure to

respond to this Show Cause Order will result in the dismissal of her petition for failure to

prosecute and insufficient proof. Id. at 2.

A petitioner must establish entitlement to compensation in the Vaccine Program through

one of two ways. The first way is to establish that he or she suffered a “Table injury,” i.e., that he

or she received a vaccine listed on the Vaccine Injury Table and subsequently developed a

corresponding injury within a corresponding period of time. § 300aa-11(c)(1). The second way

is to establish that the vaccine actually caused the onset or significant aggravation of a condition

in the vaccinee. § 300aa-13(a)(1)(A). To prove actual causation, petitioner must present: (1) a

medical theory; (2) a logical sequence of cause and effect; and (3) a medically acceptable temporal

relationship between the vaccination and the injury. Althen v. Sec’y of Health & Human Servs.,

418 F.3d 1274, 1278 (Fed. Cir. 2005).

In the present cast, petitioner does not allege a Table injury. Thus, to prevail on entitlement,

petitioner must establish that the HPV vaccine she received is the actual cause of her injuries.

Under the Vaccine Act, a petitioner may not be awarded compensation based solely on the

petitioner's claims. Rather, the petition must be supported by either medical records or by the

opinion of a competent physician. § 300aa-13(a)(1).

Petitioner underwent thorough evaluations at multiple medical institutions, including the

Mayo Clinic, which did not find support for a neurological, immunological, or other

physiological explanation for her symptoms. In September 2020, the neurologist Marc

Patterson, M.D., at the Mayo Clinic recorded that Ms. Nathan had not experienced the dramatic

spells of unresponsiveness and syncope for 18 months, she was taking college-level courses, and

she was able to drive. However, she was still experiencing “intermittent periocular twitching.”

See Pet. Ex. 26 at 10-14.

Failure to respond to a Court order will be interpreted as an inability to provide

supporting documentation for this claim, constituting insufficient proof, as well as for failure to

prosecute, and the petition will be dismissed. Tsekouras v. Sec’y of Health &Human Servs., 26

Cl. Ct. 439 (1992), aff’d per curiam without opinion, 991 F.2d 810 (Fed. Cir. 1993) Sapharas v.

Sec’y of Health & Human Servs., 35 Fed. Cl. 503 (1996); Vaccine Rule 21(b). In this case,

petitioner has failed to respond to two Order to Show Cause and petitioner’s records do not

support vaccine causation, nor has she submitted a report with the opinion of a competent

medical professional to support vaccine causation.

Therefore, this case shall be DISMISSED for insufficient proof and failure to

prosecute. The Clerk of the Court shall enter judgment accordingly.

The Clerk of the Court is directed to serve a copy of this decision via U.S. mail to the

following address:

3

Admire Nathan

129 Champions Way

Davenport, FL 33837-7545

karenaharr@yahoo.com

(407) 283-5199

IT IS SO ORDERED.

s/Thomas L. Gowen

Thomas L. Gowen

Special Master

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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