# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 2 0

- 1280 V

UNPUBLISHED

MACKENZIE SUMMERS

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: August 10 , 2021

Motion for decision; Dismissal; Human papillomavirus (“HPV”)
vaccine; Postural Orthostatic Tachycardia Syndrome (“POTS”)

Andrew D. Downing

, Van Cott & Talamante, PLLC

, for P etitioner.

Heather L. Pearlman

, U.S. Department of Justice, Washington, DC, for R espondent.

DECISION 1

On September 28, 2020

, Mackenzie Summers filed a petition for compensation

under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa

— 10 through 34

, 2 ( the “Vaccine Act” )

. M s. Summers allege d that s he developed Postural Orthostatic Tachycardia Syndrome (“POTS”), among other injuries, from a human papillomavirus (“HPV”) vaccine s he re ceived on September 13, 2017

. ECF n o. 1

.

O n July 2 8 , 2021

, M s. Summers filed a motion for a decision dismissing the petition . ECF n o. 18

. For the reasons set forth below, M s. Summers’s motion is

GRANTED , and this case is DISMISSED

.

Ms. Summers did not file any medical records, affidavits, or other supporting documentation with the petition. The PAR Initial Order required M s. Summers to file

1 Although I have not formally designated this Decision for publication, I am required to post it on the United

States Court of Federal Claims' website because it contains a reasoned explanation for the action in this

case

, in accordance with the E

- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotio n of Electronic Government Services). This means the D ecision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosur e of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subpara graph of 42 U.S.C. § 300aa (2012 ).2

these statutorily required documents

. ECF No. 5. M s. Summers received nine

extension s of time but did not file any document s to comply with the PAR Initial Order.

On July 2 8 , 2021, M s. Summers filed a motion for a decision dismissing the petition stating that :

“ She wishes to pursue a third party action in district court against [the vaccine manufacturer] directly. This choice should not be viewed in any way that Petitioner does not believe in the merits of her claim or that her injuries are not a

result of [the HPV vaccine] . Petitioner simply needs a judgment from the Vaccine Program so that she may rejec t said judgment and submit her election to opt out. However, petitioner feels she will be unable to prove that she is entitled to compensation in the Vaccine Program. ”

ECF No. 18

.

To receive compensation under the National Vaccine Injury Compensation 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 ac tually caused by a

vaccine. See §§ 300aa

— 13(a)(1)(A) and 11(c)(1). Ms. Summers alleged a Non

- Table
claim, i.e., that her POTS and other injuries were actually caused by the HPV

vaccination.

Under the Vaccine Act, a petitioner may not receive compensation 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). F or a Non

- Table claim, a petitione r must satisfy all three of the elements established by the

Federal Circuit in Althen v. Sec’y of Health & Hum. Servs. , 418 F.3d 1274, 1278 (2005): “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause an d effect showing that the vaccination was the reason for the injury; and (3) a showing of proximate temporal relationship between vaccination and injury.”

Initially, M s. Summers has not filed any medical records as a preliminary
statutory requirement to compensation in the Vaccine Program. In regard to the requirements of a Non

- Table claim, s he has not submitted sufficient evidence to establish the Althen prongs, such as an expert report proposing a medical theory.
Moreover, M s. Summers admitted in her mo tion for a decision that s he will not be able

to establish entitlement to compensation.

Thus, P etitioner has failed to establish entitlement to compensation in the Vaccine Program. This case is dismissed for insufficient proof . The clerk shall enter judgment accordingly. 3

3 If Petitioner wishes to brin g a civil action, s he must file a notice of election rejecting the judgment pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”3

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran Chief Special Master