VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-00624
Package ID: USCOURTS-cofc-1_13-vv-00624
Petitioner: Cynthia M. Morris Sabin
Filed: 2013-08-29
Decided: 2014-07-02
Vaccine: influenza
Vaccination date: 2009-11-03
Condition: narcolepsy with cataplexy
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Cynthia M. Morris Sabin, appearing pro se, filed a petition on August 29, 2013, seeking compensation from the National Vaccine Injury Compensation Program. She alleged that she received a "trivalent H1N1 AS03 Influenza vaccination" on November 3, 2009, which caused her to develop narcolepsy with cataplexy. Medical records indicated that on November 3, 2009, Ms. Morris Sabin actually received two vaccinations: a monovalent H1N1 vaccine and a seasonal trivalent influenza vaccine. Her first symptoms of narcolepsy appeared by December 23, 2009, when she sought medical attention for fatigue, confusion, dizziness, and headaches. A neurologist suggested narcolepsy with cataplexy on January 5, 2010. The Secretary of Health and Human Services moved to dismiss the petition on two grounds. First, the monovalent H1N1 vaccine administered in 2009 is not listed on the Vaccine Injury Table and therefore is not compensable under the program. Second, to the extent the petition was based on the trivalent seasonal influenza vaccine, it was filed more than 36 months after the first manifestation of injury (symptoms by December 23, 2009; petition filed August 29, 2013), making it untimely under the statute of limitations. Ms. Morris Sabin argued for equitable tolling, citing her lack of awareness of the H1N1/narcolepsy link and the existence of a doctor-patient fiduciary relationship. Special Master Christian J. Moran rejected these arguments, finding her lack of awareness analogous to the situation in Cloer v. Sec'y of Health & Human Servs., which did not justify equitable tolling, and that no fiduciary relationship between the government and the petitioner had been established. The petition was dismissed.

Theory of causation field:
Petitioner Cynthia M. Morris Sabin, born in 1965 and working as a nurse, received a monovalent H1N1 vaccine and a seasonal trivalent influenza vaccine on November 3, 2009. She alleged the H1N1 vaccine caused narcolepsy with cataplexy, with first symptoms by December 23, 2009. The petition was filed August 29, 2013. Respondent moved to dismiss, arguing the monovalent H1N1 vaccine is not on the Vaccine Injury Table, and the petition for the trivalent flu vaccine was untimely as it was filed more than 36 months after the first symptom manifestation. Special Master Christian J. Moran dismissed the petition, finding the monovalent H1N1 vaccine not covered by the program. For the trivalent flu vaccine claim, the Special Master found the petition untimely filed (December 2009 symptoms vs. August 2013 filing) and rejected petitioner's arguments for equitable tolling based on lack of awareness of the H1N1/narcolepsy link and a claimed fiduciary relationship, finding her situation analogous to Cloer and no fiduciary duty established. Petitioner appeared pro se; respondent counsel was Debra A. Filteau Begley. The decision date was February 7, 2014, with a final filing date of July 2, 2014. No award was made.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_13-vv-00624-0
Date issued/filed: 2014-07-02
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 02/07/2014) regarding 10 DECISION of Special Master. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
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Case 1:13-vv-00624-UNJ Document 12 Filed 07/02/14 Page 1 of 5
ORIGINAL
Jn ttj£ Intteft States (Etfurt &f 3tetontl Qllatma
FILED
OFFICE OF SPECIAL MASTERS
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 ofpetition;
equitable tolling.
Respondent. *
Cynthia M. Morris Sabin, Genoa, IL, appearing pro se;
DebraA. Filteau Begley, United States Dep't ofJustice, Washington, DC, for respondent.
DECISION DISMISSING 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 that this vaccination caused her to suffernarcolepsy 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 influenzavaccine is
covered, Ms. Morris Sabin filed her petition 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, neither response effectively rebuts the Secretary's basic arguments. Thus, for the
reasons explained below, the petition is dismissed.
1TheE-Government Actof2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post thisdecision on itswebsite. Pursuantto Vaccine Rule 18(b),
the parties have 14days to fileamotion proposing redactionofmedical information orother
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.

Case 1:13-vv-00624-UNJ Document 12 Filed 07/02/14 Page 2 of 5
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 concur regarding 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 Sabinmay be suffering from narcolepsy
with cataplexy. Pet. ]j7, 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 reliefmay
be granted, pursuant to RCFC 12(b)(6). To properly state a claim, the petitionermust 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 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 beganto 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.

Case 1:13-vv-00624-UNJ Document 12 Filed 07/02/14 Page 3 of 5
III. Analysis
The parties' briefs raise three issues. First, whether the Vaccine Program may
compensate apetitioner 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 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. SeePet.f 14;Pet'r's FirstResp.fflf 25, 30-33, 35;Pet'r's SecondResp., filedOct.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 InfluenzaVaccine
On the same day that Ms. Morris Sabin received the monovalent HlNl vaccine, she also
received a vaccination for seasonal influenza. Exhibit2. Although her petition does not focus
on this vaccination, she may have intendedto allege that the trivalent influenzavaccine harmed
3Inthiscontext,Ms.MorrisSabinreferstoa"WorldWidesideeffectofNarcolepsy
with Cataplexy, inrelationto 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 incidenceofnarcolepsy 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 ofMs. Morris Sabin's
allegationregarding"World Wide"reportsandthe Secretary's discussionofPandemrixare
otherwise beyond the scope ofthis decision.

Case 1:13-vv-00624-UNJ Document 12 Filed 07/02/14 Page 4 of 5
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 "theexpiration 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
her narcolepsy. See Pet'r'sFirst 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 Sabinmay rely upon equitable tolling.
C. Equitable Tolling
In Cloerv. 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 betweenthe 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 adoctor and patient. Neitherargument is persuasive.
First, with respect to Ms. Morris Sabin's lack ofawareness, the facts ofher case are
essentially analogous to the facts in Cloer.
Second, Ms. Morris Sabinhas not established a fiduciary relationship betweenthe
Secretaryand 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 motionto dismiss anyclaim based uponthe
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).
4Although Ms. Morris Sabin's First Response isostensibly aresponse about the statute
oflimitations, itactuallypresents factsthat arerelevant to equitable tolling. Effectively,it
duplicatesMs.MorrisSabin's SecondResponse. Herargumentsaboutequitabletollingare
discussed in the following section.

Case 1:13-vv-00624-UNJ Document 12 Filed 07/02/14 Page 5 of 5
IV. Conclusion
Ms. Morris Sabin may not proceed on a claim that the HlNl monovalent vaccination
givento 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, her petition is DISMISSED.
IT IS SO ORDERED.
Christian J. Morar
Special Master