ORIGINAL

Jn ttj£ Intteft States (Etfurt &f 3tetontl Qllatma

OFFICE OF SPECIAL MASTERS

*

FILED

FEB - 7 2014

CYNTHIA M. MORRIS SABIN, * MQrni IDT __

No. 13-624V FEDERAL CLAIMS

Petitioner, * Special Master Christian J. Moran *

v. * Filed: February 7,2014

SECRETARY OF HEALTH * Entitlement; motion to dismiss;

AND HUMAN SERVICES, * H1N1 vaccine; timeliness of petition;

Respondent. *

equitable tolling.

Cynthia M. Morris Sabin, Genoa, IL, appearing pro se;

Debra A. Filteau Begley, United States Dep't ofJustice, Washington, DC, for respondent.

DECISION DISMISSING PETITION1

Cynthia M. Morris Sabin seeks compensation through the National Childhood

Vaccination Injury Compensation Program, 42 U.S.C. § 300aa-10 through 34 (2012). Her

petition alleges that she received a "trivalent H1N1 AS03 Influenza vaccination" on November

3, 2009. She further alleges that this vaccination caused her to suffer narcolepsy with cataplexy.

Ms. Morris Sabin filed her petition on August 29, 2013.

The Secretary filed a motion to dismiss the petition, presenting two arguments. First, the

Secretary argues that the 2009 monovalent H1N1 vaccine is not a vaccine listed in the Vaccine

Table. Second, the Secretary argues that although the trivalent seasonal influenza vaccine is

covered, Ms. Morris Sabin filed her petition more than nine months beyond the time permitted in

the statute of limitations.

Ms. Morris Sabin submitted two responses to the Secretary's motion to dismiss.

However, neither response effectively rebuts the Secretary's basic arguments. Thus, for the

reasons explained below, the petition is dismissed.

1TheE-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,

2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),

the parties have 14 days to file a motion proposing redaction ofmedical 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. Facts

The parties do not dispute the basic chronology of events in Ms. Morris Sabin's medical

history. With the exception ofthe type of vaccination Ms. Morris Sabin received, the petition

and the medical records concur regarding the following chronology.

Ms. Morris Sabin was born in 1965. Pet. ]f 1. In 2009, she was working as a nurse.

Pet'r's First Resp., filed Oct. 10, 2013, f 12.

On November 3, 2009, she received a vaccination. The petition, as previously

mentioned, characterizes the November 3, 2009 vaccination as a "trivalent H1N1 AS03

Influenza vaccination." Pet. f 3, citing exhibit 2. The cited record from Kishwaukee

Community Hospital lists two vaccinations as occurring on November 3, 2009, "H1N1" and

"INFLU." Exhibit 2. Ofthese, the former vaccination is highlighted.

According to the medical records filed as exhibits, Ms. Morris Sabin first sought medical

attention on December 23, 2009. On that date, she complained about fatigue, confusion,

dizziness, and headaches. Pet. f 5; exhibit 3. Dr. Michelson did not record when these

symptoms began.2

Ms. Morris Sabin sought care from different doctors. A neurologist, Mohammed K.

Ghumra, suggested, on January 5, 2010, that Ms. Morris Sabin may be suffering from narcolepsy

with cataplexy. Pet. ]j 7, citing exhibit 5 at 32-33. The Secretary summarized many ofthe

records relating to the treatments given to Ms. Morris Sabin. See Resp't's Mot. to Dismiss at 2-

4. These later medical records, although exhibits in Ms. Morris Sabin's case, are not relevant to

the issues in the Secretary's motion to dismiss.

II. Standards for Adjudication

A special master may dismiss a petition for failure to state a claim upon which relief may

be granted, pursuant to RCFC 12(b)(6). To properly state a claim, the petitioner must provide "a

short and plain statement ofthe claim, which shows that the petitioner is entitled to relief."

Totes-Isotoner Corp. v. United States, 594 F.3d 1346 (Fed. Cir. 2010) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). A complaint does not need detailed factual allegations,

but "factual allegations must be enough to raise a right to relief above the speculative level, on

the assumption that all the allegations in the complaint are true (even if doubtful in fact)."

Twombly, 550 U.S. at 555.

As described in the Secretary's motion to dismiss, Ms. Morris Sabin provided

information about when her symptoms began to other doctors. In these histories, the onset of her

problems occurred closer to the date of vaccination, November 3, 2009, and, in one history, the

problems began on the date of vaccination.

However, determining exactly how soon after vaccination Ms. Morris Sabin started to

have problems is not necessary for deciding the issues raised in the Secretary's motion. It is

sufficient to note that by December 23, 2009, Ms. Sabin was seeking medical attention.
III. Analysis

The parties' briefs raise three issues. First, whether the Vaccine Program may

compensate a petitioner for an injury caused by the monovalent HlNl vaccine given in 2009.

Second, whether Ms. Morris Sabin filed a claim based upon a trivalent seasonal influenza

vaccine within the time permitted by the statute of limitations. Third, and related to the second

issue, whether Ms. Morris Sabin may rely upon the doctrine of equitable tolling to save an

otherwise untimely filed petition.

A. Monovalent HlNl Vaccine

When a court's power to consider a petition is challenged, the court looks to the true

nature ofthe cause of action. Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1372 (Fed

Cir. 2005). Further, pleadings of pro se petitioners are construed broadly. Purr v. Nicholson,

400 F.3d 1375, 1380 (Fed. Cir. 2005); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354,

1359 n.2 (Fed. Cir. 2007) (Dyk, J.) (concurring in part and dissenting in part).

Although the petition suggests that Ms. Morris Sabin received a single vaccine on

November 3, 2009, see Pet. ^f 3, the vaccination record shows that she was given two different

vaccines. One vaccine was for HlNl. The other vaccine was a seasonal vaccination for

influenza. Ms. Morris Sabin claims that the HlNl vaccine caused her narcolepsy with

cataplexy. See Pet. f 14; Pet'r's First Resp. fflf 25, 30-33, 35; Pet'r's Second Resp., filed Oct. 24,

2013, m 18, 20, 25.3

The 2009 monovalent HlNl vaccine is not a vaccine listed in the Vaccine Table. See

Fitzgerald v. Sec'v of Health & Human Servs., No. 12-493V, 2012 WL 6861329 (Fed. CI. Spec.

Mstr. Dec. 19, 2012) (dismissing claim involving HlNl vaccine for failure to state a claim upon

which relief may be granted); Aguayo v. Sec'v of Health & Human Servs., No. 12-563V, 2013

WL 441013 (Fed. CI. Spec. Mstr. Jan. 15, 2013). This claim is dismissed.

B. Trivalent Seasonal Influenza Vaccine

On the same day that Ms. Morris Sabin received the monovalent HlNl vaccine, she also

received a vaccination for seasonal influenza. Exhibit 2. Although her petition does not focus

on this vaccination, she may have intended to allege that the trivalent influenza vaccine harmed

3In this context, Ms. Morris Sabin refersto a "World Wide side effect of Narcolepsy

with Cataplexy, in relation to vaccine, HlNl AS03." Pet'r's Second Resp. If 18. Presumably,

Ms. Morris Sabin is referring to reports from Europe. According to a statement from the Centers

for Disease Control and Prevention, which the Secretary submitted as exhibit A, European

researchers reported an increased incidence of narcolepsy with a vaccination against HlNl,

known as Pandemrix. According to the CDC's statement, the United States government did not

license Pandemrix for use in this country. The accuracy and reliability of Ms. Morris Sabin's

allegation regarding "World Wide" reports and the Secretary's discussion of Pandemrix are

otherwise beyond the scope ofthis decision.
her. To the extent that the petition raised this issue, the Secretary argues that Ms. Morris Sabin

filed her petition beyond the time permitted by the statute oflimitations.

In the Vaccine Program, the petition must be filed within "the expiration of 36 months

after the date ofthe occurrence ofthe first symptom or manifestation of onset or ofthe

significant aggravation of [the alleged] injury." 42 U.S.C. § 3OOaa-16(a)(2). Here, since the

petition was filed on August 29, 2013, her petition would be timely only ifthe first symptom

occurred before August 30, 2010.

However, the Secretary argues that Ms. Morris Sabin experienced symptoms of

narcolepsy by no later than December 22, 2009. See Resp't's Mot. to Dismiss at 5-6. Ms.

Morris Sabin has not argued that the symptoms the Secretary identified were not symptoms of

her narcolepsy. See Pet'r's First Resp.4 Consequently, the Secretary has established the basic

facts for dismissing the case due to an untimely filing ofthe petition. The remaining question is

whether Ms. Morris Sabin may rely upon equitable tolling.

C. Equitable Tolling

In Cloer v. Sec'v of Health & Human Servs., 654 F.3d 1322, 1344-45 (Fed. Cir. 2011)

(en banc), the Federal Circuit recognized that, as a matter oflaw, equitable tolling could prevent

a case from being dismissed due to the failure to comply with the statute of limitations. The

Federal Circuit also stated that "extraordinary circumstances" would justify equitable tolling and

found that the facts in Cloer did not justify equitable tolling.

Here, Ms. Morris Sabin invokes equitable tolling for two reasons. First, she argues that

she was not aware ofthe association between the HlNl vaccine and narcolepsy until shortly

before she filed her petition. Second, she argues that equitable tolling is appropriate when there

is a fiduciary relationship, such as with a doctor and patient. Neither argument is persuasive.

First, with respect to Ms. Morris Sabin's lack of awareness, the facts of her case are

essentially analogous to the facts in Cloer.

Second, Ms. Morris Sabin has not established a fiduciary relationship between the

Secretary and her. She has not established that the government was obligated to warn her about

any potential adverse effects of her vaccinations such that the breach ofthis duty would support

equitable tolling. Consequently, the Secretary's motion to dismiss any claim based upon the

trivalent influenza vaccination is granted. See Wax v. Sec'v of Health & Human Servs., 108 Fed.

CI. 538 (2012) (denying motion for review of decision granting motion to dismiss).

4Although Ms. Morris Sabin's First Response isostensibly a response about the statute

oflimitations, it actually presents facts that are relevant to equitable tolling. Effectively, it

duplicates Ms. Morris Sabin's Second Response. Her arguments about equitable tolling are

discussed in the following section.
IV. Conclusion

Ms. Morris Sabin may not proceed on a claim that the HlNl monovalent vaccination

given to her in 2009 harmed her because the Vaccine Program does not compensate injuries

caused by that particular vaccine during the 2009-10 flu season. Ms. Morris Sabin also may not

proceed on a claim that a trivalent influenza vaccination given to her in 2009 harmed her because

she filed her claim outside the time permitted by the statute oflimitations and she cannot rely

upon equitable tolling.

Consequently, her petition is DISMISSED.

IT IS SO ORDERED.

Christian J. Morar

Special Master