In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

PAYTON BERGIN, *

* No. 17-241V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: September 1, 2020

*

SECRETARY OF HEALTH * Entitlement, dismissal

AND HUMAN SERVICES, *

*

Respondent. *

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

Andrew D. Downing, Van Cott & Talamante, PLLC, for petitioner;

Camille M. Collett, United States Dep’t of Justice, Washington, DC, for 

respondent.

UNPUBLISHED DECISION DENYING COMPENSATION1

Payton Bergin alleged that a human papillomavirus (HPV) vaccine she 

received on February 25, 2014, caused her to suffer from episodes of inability to 

walk and talk, short term memory loss, sleeping 15-17 hours a day, severe 

headaches, chronic fatigue and tiredness, dizziness, fainting, hallucinations, 

chronic joint pain, amnesic spells, and encephalopathy. Petition, filed Feb. 21, 

2017, at 1.

2

 On August 25, 2020, Ms. Bergin moved for a decision dismissing her

petition.

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

(https://www.uscfc.uscourts.gov/aggregator/sources/7). Once posted, anyone can access this 

decision via 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 be reflected in the document 

posted on the website.

2 Because Payton Bergin was a minor when the petition was filed, her parents were the initial 

petitioners. After Ms. Bergin reached the age of majority, she assumed the role of petitioner. 

Order, issued June 6, 2019. For simplicity, the decision refers to Ms. Bergin as the petitioner 

throughout the life of the case. 
2

I. Procedural History

Ms. Bergin filed a petition on February 21, 2017, without any medical 

records explaining that her initial counsel, Mr. Jeffrey Pop, had only recently been 

retained. On May 22, 2017, Ms. Bergin filed an amended petition providing a 

more detailed chronology, her medical records, and a statement of completion. 

The Secretary identified missing medical records. Rep’t’s Status Rep., filed June 

28, 2017. Ms. Bergin filed the missing medical records by October 16, 2017.

In his Rule 4 report, the Secretary opposed compensation questioning the 

onset of Ms. Bergin’s symptoms, the duration of her symptoms, and the support 

from her treating physicians, aside from one doctor, Dr. Jean Corbier. Resp’t’s 

Rep., filed Dec. 18, 2017, at 29-33. The Secretary noted that a special master in 

another case had found Dr. Corbier’s expert report to be unreliable. Resp’t’s Rep. 

at 32 n.35 (citing Prokopeas v. Sec’y of Health and Human. Servs., No. 04-1717V, 

2017 WL 3033775, at *34 (Fed. Cl. Spec. Mstr. June 14, 2017)).

At a status conference to discuss the Rule 4 report, before substantive 

discussions began, Ms. Bergin’s counsel, Mr. Pop, advised that he intended to 

withdraw from the case and requested time for Ms. Bergin to find substitute 

counsel. Order, issued Jan. 9, 2018.

On March 29, 2018, Mr. Pop moved for an interim award of attorneys’ fees 

and costs. A few days later, Mr. Pop moved to withdraw as counsel of record. 

Pet’r’s Mot. Withdraw, filed Apr. 2, 2018. In his motion to withdraw, Mr. Pop 

noted that he initially intended to retain Dr. Corbier to provide an expert report in 

this case but that the criticism of Dr. Corbier in Prokopeas caused him to be 

reluctant to proceed with Dr. Corbier. Mr. Pop stated that he was not aware of 

another expert who could provide a supportive opinion for Ms. Bergin.

The Secretary opposed an interim award of attorneys’ fees and costs arguing 

that withdrawal of counsel was not a sufficient basis to justify an interim award but 

did not address reasonable basis, good faith, or the amount of compensation. 
3

Resp’t’s Resp., filed Apr. 26, 2018.3 The Secretary was ordered to address 

reasonable basis, good faith, and the amount of compensation. Order, issued July 

5, 2018.

While disputing a special master’s authority to order an attorneys’ fees and 

costs response, the Secretary argued that there was no reasonable basis or good 

faith but did not address the amount of compensation. Resp’t’s Resp., filed Aug. 6, 

2018. Ms. Bergin filed a reply on August 10, 2018. 

To further develop issues regarding reasonable basis and Dr. Corbier, the 

undersigned ordered additional briefing on those topics. Order, issued Nov. 8, 

2018. Ms. Bergin filed a supplemental brief on December 11, 2018. Before filing 

his brief, the Secretary requested and received a stay of proceedings due to the 

federal government shutdown that began in December 2018. Order, issued Jan. 7, 

2019. After the government reopened and the stay was withdrawn, the Secretary 

filed his supplemental brief. Resp’t’s Supp. Br., filed Mar. 1, 2019. Ms. Bergin 

completed the supplemental briefing by filing a reply on March 8, 2019.

Due to undersigned’s concerns regarding reasonable basis, Ms. Bergin’s 

motion for an interim award of attorneys’ fees and costs was denied without 

prejudice and deferred to allow Ms. Bergin to possibly retain an expert to support 

her case. Order, issued Apr. 24, 2019. On May 1, 2019, Ms. Bergin filed a motion 

to substitute counsel entering the appearance of Andrew Downing. Pet’r’s Mot. 

Sub., filed May 2, 2019.

At a June 4, 2019 status conference, Mr. Downing stated an intent to retain 

an expert to develop Ms. Bergin’s case. Order, issued June 6, 2019. The 

undersigned issued instructions to guide the submission of expert reports. Order, 

issued June 21, 2019.

Ms. Bergin filed an expert report from Dr. Mitchell Miglis. Exhibit 26. Dr. 

Miglis opined that the HPV vaccine cause Ms. Bergin to develop symptoms of 

idiopathic hypersomnia. Id. at 1. The Secretary intended to file a responsive 

expert report. Order, issued Sept. 9, 2019.

3 The Secretary had originally filed a response on April 9, 2018, but that filing appeared to 

contain facts from another case, which was noted by Ms. Bergin in her April 24, 2018 reply. The 

Secretary’s April 9, 2018 was accordingly stricken from the record. Order, issued May 1, 2018.
4

On December 13, 2019, the Secretary filed expert reports from Drs. Andrew 

MacGinnitie and David Raizen. Exhibits A, C. Dr. Raizen challenged Dr. Miglis’ 

diagnosis of idiopathic hypersomnia and Dr. Miglis’ use of narcolepsy data to 

support conclusions about idiopathic hypersomnia. Exhibit C at 7-9. Dr. 

MacGinnitie disputed that idiopathic hypersomnia is an autoimmune condition. 

Exhibit A at 8. Both experts proposed conversion disorder as an alternative 

explanation for Ms. Bergin’s symptoms. Exhibit A at 11; exhibit C at 10.

Ms. Bergin filed a supplemental report from Dr. Miglis on April 15, 2020. 

Exhibit 43. In consideration of the expert reports from Dr. Miglis, the undersigned 

reconsidered and granted Ms. Bergin’s motion for an interim award of attorneys’ 

fees and costs. Decision, 2020 WL 3264273 (May 14, 2020).

The Secretary filed a responsive expert report from Dr. Raizen. Exhibit E. 

Because Ms. Bergin stated that she did not intend to file any further expert reports, 

the case would proceed to entitlement briefing. Order, issued July 30, 2020.

On August 25, 2020, Ms. Bergin moved for a decision dismissing her

petition. While Ms. Dalton was requesting dismissal of her claim, she maintained 

that “This choice should not be viewed in any way that [she] does not believe in 

the merits of her claim or that her injuries are not a result of [the vaccine].” Pet’r’s 

Mot. Dismiss at 2. Ms. Bergin indicated that the Secretary did not oppose the 

motion. The Secretary did not file a response. This matter is now ready for 

adjudication

II. Analysis

To receive compensation under the National Vaccine Injury Compensation 

Program (hereinafter “the 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 actually caused by a vaccine. See §§ 300aa-13(a)(1)(A) 

and 300aa-11(c)(1). Under the Act, a petitioner may not be given a Program award 

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). 

In this case, Ms. Bergin filed medical records and expert reports in support 

of her claim, but nonetheless, wishes to have her claim dismissed and judgment 

entered against her pursuant to 42 U.S.C. § 300aa—21(a). To conclude the 
5

proceedings on the petition and have judgment enter, a decision must be issued. 

Vaccine Rules 10(c), 11(a). 

To conform to section 12(d)(3), a decision must “include findings of fact and 

conclusions of law.” Here, although the parties were in the process of presenting 

arguments, the evidence weighs against a finding that Ms. Bergin suffered from 

idiopathic hypersomnia. Without a showing that the vaccinee suffered the injury 

that the vaccine allegedly caused, the remainder of the case becomes moot. See

Broekelschen v. Sec’y of Health and Human Servs., 618 F.3d 1339, 1346 (Fed. 

Cir. 2010). Accordingly, the undersigned is not required to evaluate whether the 

HPV vaccine can cause idiopathic hypersomnia. 

Thus, the Motion for Decision is GRANTED and this case is 

DISMISSED WITH PREJUDICE for insufficient proof. The Clerk shall 

enter judgment accordingly. See Vaccine Rule 21(b). 

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master