# ORIGINAL Jn ttj£Intteft States (Etfurt &f3tetontl Qllatma

OFFICE OF SPECIAL MASTERS

* 

## FILED FEB - 7 2014 CYNTHIA M. MORRIS SABIN, * MQrni IDT

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### No. 13-624V FEDERALCLAIMS Petitioner, * Special Master Christian J. Moran

* v. * Filed: February 7,2014
SECRETARY OF HEALTH * Entitlement; motion to dismiss; AND HUMAN SERVICES, * H1N1 vaccine; timeliness ofpetition; Respondent. * equitable tolling.

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

### DebraA. Filteau Begley, United States Dep't ofJustice, Washington, DC, for respondent. DECISIONDISMISSING PETITION1 Cynthia M. Morris Sabin seeks compensationthrough 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 thatthis vaccination caused her to suffernarcolepsy with cataplexy. Ms. Morris Sabin filed herpetition 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 influenzavaccine is covered, Ms. Morris Sabin filed herpetition more than nine months beyond the time permitted in the statute oflimitations. Ms. Morris Sabin submitted two responses to the Secretary's motion to dismiss. However, neitherresponse effectively rebuts the Secretary's basic arguments. Thus, for the reasons explained below, the petition is dismissed.


### 1TheE-GovernmentAct of2002, 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 14days to file a motion proposing redactionofmedical 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 ofevents in Ms. Morris Sabin's medical 

### history. With the exception ofthe type ofvaccination Ms. Morris Sabin received, the petition and the medical records concurregarding the following chronology. Ms. Morris Sabin was born in 1965. Pet. ]f1. 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 Influenzavaccination." 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 soughtmedical 

### attention on December23, 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 relevantto the issues in the Secretary's motion to dismiss. II. Standards for Adjudication A special mastermay dismiss a petition for failure to state a claim upon which reliefmay be granted, pursuant to RCFC 12(b)(6). To properly state a claim, the petitionermustprovide "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 reliefabove the speculative level, on the assumption that all the allegations in the complaint are true (even ifdoubtful in fact)." Twombly, 550 U.S. at 555.

As described in the Secretary's motion to dismiss, Ms. Morris Sabinprovided information about when her symptoms began to other doctors. In these histories, the onset ofher 

### problems occurred closer to the date ofvaccination, November 3, 2009, and, in one history, the problems began on the date ofvaccination. However, determining exactly how soon after vaccination Ms. Morris Sabin startedto 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, whetherthe Vaccine Program may 

### compensate apetitionerfor 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 oflimitations. Third, and related to the second 

### issue, whetherMs. Morris Sabin may rely upon the doctrine ofequitable tolling to save an otherwise untimely filed petition.

A. Monovalent HlNl Vaccine 

### When a court's powerto considera petition is challenged, the court looks to the true nature ofthe cause ofaction. Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1372 (Fed 

### Cir. 2005). Further, pleadings ofpro se petitioners are construed broadly. Purrv. 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 ofHealth & 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 reliefmay be granted); Aguayo v. Sec'v ofHealth & 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 intendedto allege that the trivalent influenzavaccine harmed



### 3In this context, Ms. Morris Sabin refersto a "World Wide side effect ofNarcolepsy 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 ofnarcolepsy with a vaccination againstHlNl, 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 ofMs. Morris Sabin's 

### allegation regarding "World Wide" reports and the Secretary's discussionofPandemrix are otherwise beyond the scope ofthis decision.her. To the extentthat the petition raised this issue, the Secretary argues that Ms. Morris Sabin filed her petition beyondthe time permitted by the statute oflimitations. 

### In the Vaccine Program, the petition must be filed within "the expiration of36 months afterthe date ofthe occurrence ofthe first symptom or manifestation ofonset 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 December22, 2009. See Resp't's Mot. to Dismiss at 5-6. Ms. Morris Sabinhas not argued that the symptoms the Secretary identified were not symptoms of 

### hernarcolepsy. SeePet'r'sFirstResp.4 Consequently, the Secretaryhas establishedthebasic 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 ofHealth & Human Servs., 654 F.3d 1322, 1344-45 (Fed. Cir. 2011) 

### (en banc), the Federal Circuitrecognized that, as a matteroflaw, equitable tolling could prevent 

### a case from being dismissed due to the failure to comply with the statute oflimitations. The Federal Circuit also statedthat "extraordinary circumstances" wouldjustify equitable tolling and found that the facts in Cloerdid notjustify 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. Neitherargument is persuasive. First, with respectto Ms. Morris Sabin's lack ofawareness, the facts ofher 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 obligatedto warn her about 

### any potential adverse effects ofher vaccinations such that the breach ofthis duty would support 

### equitable tolling. Consequently, the Secretary's motion to dismiss any claim based upon the trivalent influenzavaccination is granted. See Wax v. Sec'v ofHealth & Human Servs., 108 Fed. 

### CI. 538 (2012) (denying motion for review ofdecision granting motion to dismiss).



### 4AlthoughMs. Morris Sabin's FirstResponse isostensibly aresponse aboutthe 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 influenzavaccination 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, herpetition is DISMISSED.

IT IS SO ORDERED.

Christian J. Morar Special Master