VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-00599
Package ID: USCOURTS-cofc-1_17-vv-00599
Petitioner: Michael Colbath
Filed: 2017-05-04
Decided: 2020-11-13
Vaccine: HPV
Vaccination date: 2014-05-06
Condition: severe adverse reaction
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On May 4, 2017, Kathleen Colbath filed a petition for compensation on behalf of her then-minor son, Michael Colbath, under the National Vaccine Injury Compensation Program. The petition alleged that Michael suffered a severe adverse reaction to the human papillomavirus (HPV) vaccine, specifically Gardasil, which he received on May 6, 2014. The case was before Special Master Herbrina Sanders. On August 13, 2020, Michael Colbath, represented by Andrew D. Downing of Van Cott & Talamante, PLLC, filed a motion to dismiss his petition. He stated his desire to opt out of the Vaccine Program to pursue a third-party action against the vaccine manufacturer, Merck, in district court. Petitioner emphasized that this decision was a strategic choice to facilitate his opt-out election and did not reflect a lack of belief in the merits of his claim or that his injuries were not a result of Gardasil. Respondent, represented by Mallori Openchowski of the United States Department of Justice, did not object to the motion. Special Master Sanders noted that the record did not contain evidence of a "Table Injury" and that a closer review of causation-in-fact was not warranted given the dismissal request. Consequently, the case was dismissed, and judgment was entered accordingly. No compensation was awarded. The decision was posted on the court's website on November 13, 2020.

Theory of causation field:
Petitioner Michael Colbath, a minor at the time, received an HPV vaccine (Gardasil) on May 6, 2014. His mother filed a petition on May 4, 2017, alleging a severe adverse reaction. The public decision does not describe the specific adverse reaction, onset, symptoms, medical tests, treatments, or the mechanism of injury. Petitioner's counsel was Andrew D. Downing. Respondent's counsel was Mallori Openchowski. Special Master Herbrina Sanders presided. Petitioner filed a motion to dismiss on August 13, 2020, stating a desire to opt out of the Vaccine Program to pursue a third-party action against Merck, emphasizing this was a strategic choice and not a reflection on the merits of his claim. Respondent did not object. The Special Master noted the absence of evidence of a "Table Injury" and that a causation-in-fact review was not warranted due to the dismissal request. The case was dismissed on November 13, 2020, with no award of compensation.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-00599-0
Date issued/filed: 2020-11-13
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 10/26/2020) regarding 68 DECISION of Special Master. Signed by Special Master Herbrina Sanders. (rig) Service on parties made.
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Case 1:17-vv-00599-UNJ Document 75 Filed 11/13/20 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 26, 2020
* * * * * * * * * * * * * * *
MICHAEL COLBATH, *
* No. 17-599V
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH * Dismissal; Human Papillomavirus Vaccine
AND HUMAN SERVICES, * (“HPV” or Gardasil); Adverse Reaction
*
Respondent. *
* * * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Mallori Openchowski, United States Department of Justice, Washington, D.C., for Respondent.
DISMISSAL DECISION1
On May 4, 2017, Kathleen Colbath filed a petition for compensation on behalf of her then-
minor son, Michael Colbath (“Petitioner”), under the National Vaccine Injury Compensation
Program (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa-10 to 34 (2012). Petitioner
alleged that he suffered a severe adverse reaction to the human papillomavirus vaccination (“HPV”
or Gardasil) he received on May 6, 2014. Pet. at 1, ECF No. 1.
On August 13, 2020, Petitioner filed an unopposed motion for a decision dismissing his
petition. ECF No. 66. In his motion, Petitioner indicated “[he] has made the choice that he would
like to opt out of the Vaccine Program in advance of the Court ruling on entitlement…[and] wishes
to pursue a third[-]party action in district court against Merck directly.” Id. at 3. He continued,
“[t]his choice should not be viewed in any way that Petitioner does not believe in the merits of his
claim or that his injuries are not a result of Gardasil…[he] simply needs a judgment…so that he
may reject said judgment and submit his election to opt out.” Id. Respondent had no objection to
Petitioner’s motion. Id.
1 This Decision shall be posted on the United States Court of Federal Claims’ website, in accordance with
the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the Decision will be available to anyone with access to
the Internet. In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete
medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the I
agree that the identified material fits within the requirements of that provision, such material will be
deleted from public access.

Case 1:17-vv-00599-UNJ Document 75 Filed 11/13/20 Page 2 of 2
To receive compensation under the Program, Petitioner must prove either (1) that he
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
to the vaccination, or (2) that he suffered an injury that was actually caused by a vaccine. See §§
13(a)(1)(A), 11(c)(1). An examination of the record did not uncover any evidence that Petitioner
suffered a “Table Injury.” At this time, a closer review of the record regarding Petitioner’s
entitlement to an award based on causation-in-fact is not warranted in light of Petitioner’s motion
for a decision dismissing his petition. Therefore, this case must be dismissed. The Clerk shall
enter judgment accordingly.2
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
2 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
2