VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-01297
Package ID: USCOURTS-cofc-1_17-vv-01297
Petitioner: Cathy Mullen
Filed: 2017-09-20
Decided: 2018-08-16
Vaccine: influenza
Vaccination date: 2014-09-25
Condition: Parsonage-Turner syndrome
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Cathy Mullen filed a petition alleging that an influenza vaccine administered on September 25, 2014, caused her Parsonage-Turner syndrome (PTS). Her petition stated that her plexopathy began on August 1, 2014, prior to the vaccination. Medical records indicated that her treating doctors ascribed her PTS to a viral infection, specifically Epstein-Barr virus, herpes simplex virus, or varicella, not the flu vaccine. Despite multiple extensions to file expert reports, Mullen's consulted experts informed her counsel that they could not support the claim of vaccine causation. Consequently, the Special Master dismissed the petition for failure to make a prima facie case, as the medical records did not substantiate the vaccine as the cause of her condition. A subsequent review of the Special Master's decision denying attorneys' fees to the unsuccessful petitioner affirmed the dismissal, finding the claim was filed without a reasonable basis.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-01297-0
Date issued/filed: 2018-09-11
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 08/16/2018) regarding 25 DECISION of Special Master Signed by Special Master Laura D Millman. (tlf) Service on parties made.
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Case 1:17-vv-01297-TCW Document 26 Filed 09/11/18 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1297V
Filed: August 16, 2018
Not to be Published.
*************************************
CATHY MULLEN, *
*
Petitioner, *
* Influenza (“flu”) vaccine;
v. * Parsonage-Turner syndrome;
* Epstein-Barr virus; Herpes
SECRETARY OF HEALTH * Simplex virus; no expert report
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Scott W. Rooney, Farmington Hills, MI, for petitioner.
Jennifer L. Reynaud, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION1
On September 20, 2017, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that influenza (“flu”) vaccine administered
on September 25, 2014 caused her Parsonage-Turner syndrome (“PTS”). Pet. ¶ at 18.
Petitioner’s plexopathy began August 1, 2014, before her flu vaccination on September 25, 2014.
The medical records show that petitioner’s PTS is due to an Epstein-Barr virus (“EPV”)
or herpes simplex virus (“HSV”) infection. Med. recs. Ex. 7, at 43. The shooting pains in her
left arm are secondary to her overusing that arm due to her right arm being weak. Id. As Dr.
Anne M. Pawlak wrote on April 16, 2015, petitioner’s plexopathy was thought due to a varicella
infection with secondary autoimmune response. Id. at 48. Petitioner’s varicella IgM (denoting
recent or current infection) on February 2, 2015 was 1.18 when the normal reference range is
1 Because this unpublished decision contains a reasoned explanation for the special master’s action in this case, the
special master intends to post this unpublished decision 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). Vaccine Rule 18(b) states that all decisions of the special masters will be made
available to the public unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted invasion of
privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact such information prior
to the document’s disclosure. If the special master, upon review, agrees that the identified material fits within the
banned categories listed above, the special master shall redact such material from public access.

Case 1:17-vv-01297-TCW Document 26 Filed 09/11/18 Page 2 of 4
zero to 0.90. Med. recs. Ex. 7, at 39. Her varicella antibody IgG was elevated at 4,000 when
normal is less than 135. Med. recs. Ex. 3, at 75. Her herpes 1 and herpes 2 IgG were also
elevated at 42.90 (normal range zero to 0.90) and 5.35 (normal range zero to 0.90), respectively.
Med. recs. Ex. 7, at 23. Her Epstein-Barr virus was reactivated with NUC AG elevated at 534.0
(normal less than 18.0), early AG elevated at 129.0 (normal less than 9.0), and VCA IgG
elevated at 750 (normal less than 18.0). Id. at 22. Petitioner was treated with antiviral
medication.
The Federal Circuit in Capizzano v. Sec’y of HHS, 440 F.3d 1317, 1326 (Fed. Cir. 2006),
emphasized that the special masters are to evaluate seriously the opinions of petitioner’s treating
doctors since “treating physicians are likely to be in the best position to determine whether a
logical sequence of cause and effect show[s] that the vaccination was the reason for the injury.”
See also Broekelschen v. Sec’y of HHS, 618 F.3d 1339, 1347 (Fed. Cir. 2010); Andreu v. Sec’y
of HHS, 569 F.3d 1367, 1375 (Fed. Cir. 2009). Petitioner’s treating doctors in this case ascribe
her PTS to a viral infection, either varicella (chickenpox), another herpes infection, or a
reactivated Epstein-Barr virus.
On November 22, 2017, the undersigned issued her first Order to Show Cause in this
case. Petitioner continued filing medical records until filing a Statement of Completion on
January 30, 2018.
Also on January 30, 2018, petitioner filed a status report requesting an extension of time
until April 30, 2018 to file expert reports from a neurologist and immunologist, their CVs, and
any medical literature cited in the reports. On the same day, the undersigned granted petitioner’s
informal motion for an extension of time until April 30, 2018.
On April 30, 2018, petitioner filed a motion for an extension of time until June 14, 2018
to file expert reports from a neurologist and immunologist, their CVs, and any medical literature
cited in the reports. On the same day, the undersigned granted petitioner’s motion for an
extension of time until June 14, 2018.
On June 18, 2018, petitioner filed a motion for an extension of time until July 30, 2018 to
file expert reports from a neurologist and immunologist, their CVs, and any medical literature
cited in the reports. Petitioner’s counsel states in the motion that he has “not been able to get the
experts to finalize their opinions as yet.” Mot. at 1. On the same day, the undersigned granted
petitioner’s motion for an extension of time until July 30, 2018.
On August 2, 2018, the undersigned issued a second Order to Show Cause.
After the undersigned issued her second Order to Show Cause, that same day, petitioner
filed another motion for extension of time until August 23, 2018 to file two expert reports. On
the same day, the undersigned granted petitioner’s motion for an extension of time until August
23, 2018.
2

Case 1:17-vv-01297-TCW Document 26 Filed 09/11/18 Page 3 of 4
On August 16, 2018, petitioner filed a status report stating that the neurologist and
immunologist whom petitioner’s counsel contacted to serve as experts told him that “they could
not proceed with demonstrating a relationship between the vaccination and injury.” Mot. at 1.
Petitioner stated in a status report filed January 30, 2018 that she had communicated with
a neurologist and immunologist who were willing to review the medical records, and requested
90 days to file these expert reports. She has failed to do so in the six and one-half months since
then. In fact, these experts informed petitioner’s counsel that they cannot support petitioner’s
allegations.
This petition is DISMISSED for failure to prove a prima facie case.
DISCUSSION
To satisfy her burden of proving causation in fact, petitioner must prove by preponderant
evidence: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a
showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y
of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion
in Grant v. Secretary of Health and Human Services, 956 F.2d 1144, 1148 (Fed. Cir. 1992):
A persuasive medical theory is demonstrated by “proof of a logical
sequence of cause of and effect showing that the vaccination was
the reason for the injury [,]” the logical sequence being supported
by a “reputable medical or scientific explanation[,]” i.e., “evidence
in the form of scientific studies or expert medical testimony[.]”
418 F.3d at 1278.
Without more, “evidence showing an absence of other causes does not meet petitioner’s
affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
association is not sufficient to prove causation in fact. Id. at 1148.
Petitioner must show not only that but for flu vaccine, she would not have PTS, but also
that flu vaccine was a substantial factor in causing her PTS. Shyface v. Sec’y of HHS, 165 F.3d
1344, 1352 (Fed. Cir. 1999).
The Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the undersigned from ruling for
petitioner based solely on her allegations unsubstantiated by medical records or medical opinion.
The medical records do not support petitioner’s allegation. On the contrary, petitioner’s
treating doctors ascribe her PTS to a viral infection, either varicella (chickenpox), another herpes
viral infection, or a reactivated Epstein-Barr virus.
3

Case 1:17-vv-01297-TCW Document 26 Filed 09/11/18 Page 4 of 4
Petitioner has not filed any expert medical reports supporting her allegation even though
an expert neurologist and expert immunologist spent the last six and one-half months reviewing
petitioner’s medical records. Their conclusion was they cannot support petitioner’s allegation of
vaccine causation.
The petition is DISMISSED for failure to make a prima facie case.
CONCLUSION
The petition is DISMISSED. In the absence of a motion for review filed pursuant to
RCFC Appendix B, the Clerk of Court is directed to enter judgment herewith.2
IT IS SO ORDERED.
Dated: August 16, 2018 /s/ Laura D. Millman
Laura D. Millman
Special Master
2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
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DOCUMENT 2: USCOURTS-cofc-1_17-vv-01297-2
Date issued/filed: 2019-06-27
Pages: 4
Docket text: JUDGE VACCINE REPORTED OPINION re: 36 Order on Motion for Review. Signed by Judge Thomas C. Wheeler. (ejg) Service on parties made.
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Case 1:17-vv-01297-TCW Document 38 Filed 06/27/19 Page 1 of 4
In the United States Court of Federal Claims
No. 17-1297V
(Filed Under Seal: June 11, 2019)
(Reissued: June 27, 2019)1
************************************ *
*
CATHY MULLEN, *
*
Petitioner, *
Vaccine Act Case; Review of Claim for
*
Attorneys’ Fees and Costs; Reasonable
v. *
Basis for Filing; Recovery of Fees by
*
Unsuccessful Petitioner, Standard of
SECRETARY OF HEALTH *
Review.
AND HUMAN SERVICES, *
*
Respondent. *
*
************************************ *
Scott W. Rooney, Nemes Rooney P.C., Farmington Hills, Michigan, for Petitioner.
Jennifer L. Reynaud, with whom were Joseph H. Hunt, Assistant Attorney General, C.
Salvatore D’Alessio, Acting Director, Torts Branch, Civil Division, Catharine E. Reeves,
Deputy Director, Torts Branch, Civil Division, Alexis B. Babcock, Assistant Director, Torts
Branch, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.
OPINION AND ORDER
WHEELER, Judge.
This case is before the Court on Petitioner’s Motion for Review of the Special
Master’s decision denying Petitioner’s motion for attorneys’ fees and costs. Mullen v.
Sec’y of Health & Human Servs., No. 17-1297V, 2018 WL 6975232 (Fed. Cl. Spec. Mstr.
1 Pursuant to Rule 18(b) of the Court’s Vaccine Rules, this opinion and order was initially filed
under seal. As required under the Rules, each party was afforded 14 days from the date of issue,
until June 25, 2019, to object to the public disclosure of any information furnished by that party.
Neither party submitted any proposed redactions.

Case 1:17-vv-01297-TCW Document 38 Filed 06/27/19 Page 2 of 4
Dec. 11, 2018) (“Fee Decision”). For the reasons explained below, the Court affirms the
Special Master’s decision.
Background
On September 20, 2017, Petitioner filed a petition under the National Vaccine Injury
Compensation Program, 42 U.S.C. §§ 300aa-1-34 (“Vaccine Act”). She claimed that a flu
vaccination given in her left arm on September 25, 2014, had severely exacerbated a prior
condition of sudden pain in her right shoulder, right arm, right hand, upper back and all
over her body, which was diagnosed as brachial plexopathy or Parsonage-Turner
Syndrome (PTS). Fee Dec. at 1. Petitioner filed medical records shortly thereafter. Dkt.
No. 7.
On November 22, 2017, the Special Master filed the first Order to Show Cause in
this case, pointing out that the medical records showed that “Petitioner’s treating doctors
in this case ascribe her PTS to a viral infection, either varicella (chickenpox), another
herpes infection, or a reactivated Epstein-Barr virus.” Dkt. No. 10 at 2. The Special Master
noted that vaccine case law requires special masters to pay serious attention to the opinions
of treating physicians. For those reasons, the Special Master ordered Petitioner to show
cause why the case should not be dismissed. After a status conference on November 28,
2017, the Special Master ordered that Petitioner could consult a neurologist or
immunologist to review the medical records “to see if an expert will support her
allegations” and then to report back to the Court how she wished to proceed. Dkt. No. 11.
The deadline for filing that information was extended repeatedly by request of Petitioner,
and on August 2, 2018, the Special Master filed a second Order to Show Cause, noting that
eight months had passed since the first Order to Show Cause and no expert reports or
medical literature had been filed. Dkt. No. 22. On August 16, 2018, Petitioner filed a
Status Report indicating that the experts consulted were unwilling to support Petitioner’s
claim that the flu vaccine contributed to Petitioner’s condition. The Special Master then
entered a decision dismissing the petition for failure to make a prima facie case. Mullen v.
Sec’y of Health & Human Servs., No. 17-1297V, 2018 WL 4390646 (Fed. Cl. Spec. Mstr.
Aug. 16, 2018) (“Compensation Decision”).
Petitioner subsequently filed a motion for attorneys’ fees and costs, seeking to
recover approximately $12,900. Dkt. No. 29. In December 2018, the Special Master
issued the Fee Decision under review here, denying Petitioner’s request for fees in its
entirety.
Standard of Review
This Court has jurisdiction to review decisions of the Special Masters in accordance
with 42 U.S.C. § 300aa-12(e)(1)-(2). The Court may set aside a Special Master’s decision
only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
2

Case 1:17-vv-01297-TCW Document 38 Filed 06/27/19 Page 3 of 4
with law.” § 300aa-12(e)(2)(B). A Special Master’s decision on the award of attorneys’
fees to unsuccessful petitioners is discretionary, and thus is reviewed under an abuse of
discretion standard. Saxton v. Sec’y Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir.
1993). If the Special Master “considered the relevant evidence, drew plausible inferences,
and articulated a rational basis” for its decision on the award of attorneys’ fees and costs,
the Court will not find an abuse of discretion. Graham v. Sec’y of Health & Human Servs.,
124 Fed. Cl. 574, 578 (2015) (quoting Masias v. Sec’y of Health & Human Servs., 634
F.3d 1283, 1290 (Fed. Cir. 2011)).
Law Governing Recovery of Fees
The Vaccine Act permits the award of attorneys’ fees and costs even for
unsuccessful petitioners, if the Special Master or Court determines that the petition was
brought in good faith and also that there was a “reasonable basis” for the claim. 42 U.S.C.
§ 300aa-15(e)(1). The question of having a reasonable basis for the claim is the focus of
this review, since Petitioner’s good faith in filing is not challenged. An unsuccessful
petitioner seeking fees has the burden to affirmatively demonstrate that the petition has a
reasonable basis. McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 304
(2011), citing Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir.
1994). The statute sheds no further light on the meaning of “reasonable basis” in this
context; however, in Simmons v. Sec’y of Health and Human Servs., 875 F.3d 632 (Fed.
Cir. 2017), the Federal Circuit recently clarified this standard. While determination of
good faith is a subjective judgment, reasonable basis is determined on an objective basis,
inquiring as to evidentiary support for the claim described in the petition. Simmons, 875
F.3d at 636. In this regard, an imminent statute of limitations deadline “has no bearing on
whether there is a reasonable factual basis” for Petitioner’s claim. Id.
Special Master’s Decision
In rejecting Petitioner’s claim for attorney fees, the Special Master observed that
Petitioner’s claim was “unsupported by objective evidence” and was “solely based on her
view” that the vaccination exacerbated her pain. Medical records showed lab results and
various treating doctors’ conclusions setting forth other causes for her condition. In short,
“Petitioner had no reasonable expectation that she would prove that the flu vaccine caused
her PTS . . . .” Fee Dec. at 4.
Arguments
In her Motion for Review, Petitioner argues that at the time of filing she did have a
reasonable basis to believe that the vaccination exacerbated her condition. To support that
position, Petitioner states that her symptoms were minimal prior to the vaccination. Mot.
for Rev. at 3. However, there appears to be little support in the record for this statement.
The medical history shows that at onset of her pain in August of 2014, prior to the
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Case 1:17-vv-01297-TCW Document 38 Filed 06/27/19 Page 4 of 4
vaccination, Petitioner visited an Emergency Department complaining of right arm
numbness with pain lasting for two days. Pet. Ex. 3 at 4. Later, Petitioner described that
pain at onset as “outrageous” and quickly accompanied by weakness, to doctors from
whom she sought a second opinion. Pet. Ex. 6 at 2. Petitioner fails to show any convincing
evidence that her treating physicians suspected vaccination played a role in her condition.
In short, Petitioner’s Motion for Review cites very little evidence to support a finding of
reasonable basis to file.
In the Memorandum in Response, Respondent makes the case that Petitioner had
little reason to pursue her claim, citing evidentiary deficiencies in Petitioner’s case.
Respondent observes that “[w]here as here, the medical records themselves do not provide
support for the claim, due diligence requires that the attorney make basic inquiries in order
to determine if he or she will be able to support the claim through an independent expert
opinion.” Mem. in Resp. at 14. Respondent observes that the Vaccine Act’s reasonable
basis requirement calls for filing only of claims with some basis in fact, science, or law.
Id. at 15.
Discussion
In order to find an abuse of discretion in the Special Master’s denial of fees in this
case, a court would have to rule that a Special Master’s decision was “clearly
unreasonable,” that it was based on an erroneous conclusion of law, “clearly erroneous,”
or that it contained no evidence on which the Special Master could have based her decision.
Chuisano v. United States, 116 Fed. Cl 276, 284 (2014) (citing Murphy v. Sec’y Health &
Human Servs., 30 Fed. Cl. 60, 61 (1993)). In this case, the Special Master notified
Petitioner soon after filing that there were significant deficiencies in the evidence
presented, and Petitioner chose to pursue the case without producing new evidence. The
Vaccine Act in fact prohibits a special master from awarding compensation “based on the
claims of petitioner alone, unsubstantiated by medical records or by medical opinion.” 42
U.S.C. § 300aa-13(a)(1). In finally dismissing the case, the Special Master clearly
explained the treating physicians’ views of the causes of Petitioner’s condition, none of
which were related to the vaccination. This later resulted in the Fee Decision, finding the
claim was filed without a reasonable basis.
For these reasons, the Court finds that the Special Master acted within her discretion
in denying fees and costs, and her decision is hereby AFFIRMED. Accordingly,
Petitioner’s Motion for Review is DENIED.
IT IS SO ORDERED.
s/Thomas C. Wheeler
THOMAS C. WHEELER
Judge
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