ROSE v. SECRETARY OF HEALTH AND HUMAN SERVICES
1:14-vv-00215
Fed. Cl.Dec 11, 2015Background
- Petition filed March 18, 2014 under the National Vaccine Injury Compensation Program alleging Gardasil (3/21/2011) caused multiple conditions (fatigue, muscle/joint pain, headaches, chronic fatigue syndrome, fibromyalgia, gastrointestinal problems, weakness, back pain).
- Medical records show many complained-of symptoms (chronic back pain, headaches, fatigue, depression, malingering) predated the March 21, 2011 vaccination by years.
- Petitioner’s counsel withdrew October 2014; petitioner proceeded pro se and repeatedly sought time to retain new counsel but made little progress and failed to file required pre-vaccination records and psychiatric records.
- No treating physician attributed Allison’s symptoms to the vaccination; records cite scoliosis, depression (family history), and prior malingering diagnosis.
- Petitioners did not submit an expert medical opinion supporting causation; petitioners moved to dismiss on November 19, 2015 and the Special Master granted the motion and dismissed the case for failure to prove causation and for failure to prosecute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioners proved causation in fact linking Gardasil to Allison’s conditions | Gardasil caused onset/aggravation of listed symptoms after 3/21/2011 | Medical records show symptoms before vaccination; no expert opinion supports causation | Denied — petitioners failed to prove causation in fact; case dismissed |
| Whether pre-vaccination symptoms bar finding vaccine as the first onset | Petitioners asserted symptoms followed vaccination | Respondent pointed to records showing prior occurrences, precluding vaccine as first onset | Vaccination could not be the first onset where symptoms existed before vaccination (Shalala v. Whitecotton applied) |
| Whether petitioners met Althen elements (medical theory, logical sequence, temporal relationship) | Petitioners relied on temporal association and allegations | No medical theory or expert evidence submitted; mere temporal association insufficient | Not met — Althen requirements unmet without reliable medical opinion |
| Procedural: failure to prosecute / represent petitioner adequately | Petitioners sought more time and counsel; requested dismissal motion filed later | Respondent noted lack of progress, missing records, no expert report | Dismissed for failure to prosecute and for failure to establish a prima facie case |
Key Cases Cited
- Shalala v. Whitecotton, 514 U.S. 268 (1995) (symptom occurring before vaccination precludes vaccine as first onset)
- Althen v. Sec’y of HHS, 418 F.3d 1274 (Fed. Cir. 2005) (three-part test for causation in fact in vaccine cases)
- Grant v. Sec’y of HHS, 956 F.2d 1144 (Fed. Cir. 1992) (medical theory requires reputable scientific or expert support; absence of other causes insufficient)
- Shyface v. Sec’y of HHS, 165 F.3d 1344 (Fed. Cir. 1999) (but-for and substantial-factor causation standards in Vaccine Act claims)