VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-01619
Package ID: USCOURTS-cofc-1_17-vv-01619
Petitioner: Erica Livingston
Filed: 2017-10-27
Decided: 2022-12-20
Vaccine: influenza
Vaccination date: 2014-11-05
Condition: fibromyalgia
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Erica Livingston alleged that the influenza vaccine she received on November 5, 2014, caused her to suffer from vaccine-induced widespread pain syndrome classified as fibromyalgia. She filed a petition with the Court of Federal Claims on October 27, 2017. The case involved disputes over medical records and the diagnosis of her condition, with Ms. Livingston initially pursuing theories related to Epstein-Barr virus and Sjogren's syndrome before amending her petition to focus on fibromyalgia. Both petitioner and respondent submitted expert reports. After extensive proceedings, including status conferences and expert report exchanges, Ms. Livingston moved to dismiss her petition on December 5, 2022. She stated her understanding that dismissal would result in a judgment against her, allowing her to pursue a civil action. The court construed this as a motion for involuntary dismissal. The decision noted that the evidence weighed against a finding of fibromyalgia and that without proof of the alleged injury, the case could not proceed. Consequently, the Special Master granted the motion and dismissed the case with prejudice for insufficient proof.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-01619-1
Date issued/filed: 2023-01-23
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 12/20/2022) regarding 140 DECISION of Special Master Signed by Special Master Christian J. Moran. (dksc) Service on parties made. Modified on 4/27/2023 to correct docket link (sw).
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Case 1:17-vv-01619-UNJ Document 146 Filed 01/23/23 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
ERICA LIVINGSTON, *
* No. 17-1619V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: December 20, 2022
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement; dismissal.
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
Mark Theodore Sadaka, Law Offices of Sadaka Associates, LLC, for petitioner;
Julia Marter Collison, United States Dep’t of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Ms. Erica Livingston alleged that the influenza vaccine she received on November 5,
2014, caused her to suffer shortly thereafter vaccine-induced wide-spread pain syndrome
classified as fibromyalgia that was either "caused-in-fact" by the above-stated vaccination or, in
the alternative, significantly aggravated by the above-stated vaccination. Am. Pet., filed February
14, 2022, at 1. On December 5, 2022, Ms. Livingston moved for a decision dismissing her
petition.
I. Procedural History
Ms. Livingston (“petitioner”) filed a petition on October 27, 2017. After petitioner filed
her initial medical records, the Secretary contested. Resp’t’s Rep., filed Oct. 9, 2018. A status
conference was held on October 22, 2018, during which the issue of petitioner’s missing medical
1 The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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 appear in the
document posted on the website.

Case 1:17-vv-01619-UNJ Document 146 Filed 01/23/23 Page 2 of 3
records and dispute of unclear diagnosis of Epstein-Barr virus reaction or Sjogren’s syndrome
were raised.
After additional records were filed, petitioner filed expert reports supporting her claim
from Dr. Shoenfeld and Dr. Rushing. In response, the Secretary filed expert reports from Dr.
Whitton and Dr. Antiochos.
On June 2, 2021, a status conference was held during which petitioner stated she was
pursuing a fibromyalgia theory, and respondent requested that petitioner file an amended petition
to reflect this position. Petitioner also stated that she was no longer engaging with Dr. Shoenfeld.
Thereafter, on February 14, 2022, petitioner filed an amended petition to state that she was
pursuing a fibromyalgia theory and a supplemental expert report of Dr. Rushing to support her
claim. The expert report phase concluded with supplemental expert reports from Dr. Whitton and
Dr. Antiochos filed by the Secretary.
On June 22, 2022, a status conference was held during which the undersigned expressed
some skepticism regarding Dr. Rushing’s theory that fibromyalgia can be caused by cytokines.
The undersigned recognized that fact questions remain unresolved regarding petitioner’s
condition and onset, so the undersigned recommended that the parties attempt to resolve fact
questions before their experts continue work on this case. The undersigned then issued an order,
requiring petitioner to file a status report proposing how to proceed. Based on petitioner’s status
report submitted September 22, 2022, stating that petitioner intended to file a motion for a
decision to be made on the record, the undersigned required petitioner to file a motion for a
decision based upon the record. Order, issued on Sep. 23, 2022.
On December 5, 2022, petitioner moved for a decision dismissing her petition. Petitioner
stated that she “understands that a decision by the Special Master to dismiss her petition will
result in judgment against her [and] has been advised that such a judgment will end all her rights
in the Vaccine Program.” Pet’r’s Mot., filed Dec. 5, 2022. Petitioner “intends to elect to reject
the Vaccine Program judgment against her and elect to file a civil action.” Id. The Secretary did
not file a response to this motion. 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, petitioner filed medical records and expert reports in support of her claim,
but nonetheless, wishes to have her claim dismissed and judgment entered against her. Though
petitioner did not cite to a specific rule when filing this motion, the undersigned will construe
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Case 1:17-vv-01619-UNJ Document 146 Filed 01/23/23 Page 3 of 3
this as a motion filed pursuant to 42 U.S.C. § 300aa—21(b) (regarding involuntary dismissal),
given petitioner’s clear intent that a judgment issue in this case, protecting her right to file a civil
action in the future. See Pet’r’s Mot., filed Dec. 5, 2022.
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 petitioner suffered from fibromyalgia. 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 influenza vaccine
can cause fibromyalgia.
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
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